A R. H. F. VARIEL, JR. 629 I. W. HELLMAN BLOa. LOS ANGELES. C^.L. JAN 30 1911 1540 THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW h 9 £ h cXP Si: /r ^ /> > n COWDERl^S NEW BOOK OF FORMS, BKING LEGAL FORMS AND PRECEDENTS FOR COUST PEOCEEDINGS AND BUSINESS TRANSACTIONS, ELABORATELY ANNOTATED. Especially Adapted to the Codes and Statutes op Alaska, Akizona, Californl\, Colorado, Idaho, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington and Wyoming. (This Is a now and enlarged edition of Cowdery's Forms and P«>cWI«>ntoVBCp 2 New Book of Forms. (Id., sec. 2480'! ; marriaare settlement (Id., sees. 178, 180) ; in, ventory of wife's separate property (Id., sec. 165) ; articles of incorporation (Id., sec. 292) ; illegitimate child, declaration that it is, by parent (Id., sec. 1387) ; all instruments in writing exe- cuted bv a prisoner confined in a state penitentiary (Act of May 6, 1862,' Stats., p. 496). What Writings may be Acknowledged or Proved. — Every private writing, except last wills and testaments, may be ac- knowledged or proved and certified in the manner provided for the acknowledgment or proof of conveyances of real property'-, and the certificate of such acknowledgment or proof is prima facie evidence of the execution of the writing in the same man- ner as if it were a conveyance of real property : Cal. C. C. P., sec. 1948. An attachment writ is a written instrument signed by the clerk of a court or a justice of the peace running in the name of the people of the state of California, and is delivered to an officer of the law with instructions to seize and hold the property of a person named in it to secure the payment of a debt he is alleged to owe the plaintiff in the action in which the writ is issued. It becomes a lien upon the property attached. In Hoag v. Howard, 55 Cal. 564, it was contended that an attachment was an instru- ment that took precedence of an unrecorded deed. The court held that it did not. It said that if the code is examined it will be invariably found that the word ' ' instrument ' ' is used to indi- cate a written paper signed and delivered, transferring title to or creating a lien on property, or giving a right to a debt or duty. When Hoag v. Howard was decided it was apparently consid- ered upon the theory that each code was a law by itself, and for that reason all references were to the Civil Code sections refer- ring to "instruments." At the present writing all the codes are construed together as one writing, and all are therefore of equal importance, and never conflict with one another as separate laws sometimes do. Up to this point what has been said is prelimi- nary to considering what is an "instrument" that may be ac- knowledged or proved. Many cases will be cited which refer es- pecially to acknowledgment of instruments, but no California case has been found which refers to proofs of the execution of in-i struments except in an inferential manner. No. 1. — General Statutory Form — California, Idaho, Montana, North and South Dakota, Oregon. State of California, City and County of San Francisco, — ss. On this 2d day of March, in the year 1905, before me [here insert name and quality of the officer] , personally appeared A. B., Alknovvxedc-ment and Proof op Instrument, 3 known to me [or proved to me on the oath of C. D.] to be the person whose name is subscribed to the within instrument, and acKnowIedged that he [she or they] executed the same. NOTE.— California, C. C, sec. 1189; Idaho, C. C, sec. 2427 (except as to married women: See Forms, post); Montana, C. C, sec. 1609; North Dakota, C. C, sec. 3.'3S4; South Dakota, C. C, sec. 981; Oregon Codes and Statutes, sees. 5343-.5345, 5549. It is also provided, that when an a:;kiiowlcdgmont is not taken in California and is taken in accordance with the laws cf the place where it is made it is sufficient in California, provided that the certificate of the clerk of a court of record of the county or district where it is taken that the officer certifying is author- ized to do so, and that the signature of the officer to certificate is his true signature, and that such acknowledgment is taken in accordance with the laws of the place where made, is prima facie evidence of the facts stated in the certificate: Id., sec. 1189. This provision is applicable to Idaho, C. C, sec. 2427; Montana, C. C, sec. 1609; North Dakota, C. C^ sec. 3584; South Dakota, C. C, sec. 9S1; Alaska, Arizona, Colorado, Wyoming, Nevada, Colorado, Oregon. See Forms, post, for all others. No. 2. — Statutory Form — Corporations — California. State of California, Ctty and County of San Francisco, — ss. On this third day of August in the year one thousand nine hun- dred and six, before me, A. B., a notary pubHc in and for the said city and county, personally appeared C. M. B., known to me to be the president of the corporation described in and that exe- cuted the within instrument, and also known to me to be the per- son who executed it on behalf of the corporation therein named, and he acknowledged to me that such corporation executed the same. NOTE.— California. C. C, see. 1190 (Stats. 1905, p. 603). The ac- knowledgment of an instrument must not be taken unless the officer tak- ino' it has satisfactory evidence, on the oath or affirmation of a credible witness, that the person making such acknowledgment is the individual who is described in and who executed the instrument, or if executed by a corporation, that the person making such acknowledgment is the president or secretary of such corporation, or other person who exe- cuted it on its behalf: Id., sec. 11S5; Amendment of 1905, Stats., p. 603, No. 3. — Statutory Form — Corporation — Idaho. Montana, Utah, North and South Dakota, Oregon. State of Idaho, County of Ada, — ss. On this third day of June, in the year 1005, before me [Iwre insert the name and quality of the officer] , personally appeared A. B., known to me [or proved to me on the oath of C. D.,] to be the president [or the secretary] of the corporation that executed the within instrument, and acknowledged to me that such cor- poration executed the same. 4 New Book of Forms. NOTE.— Idaho, C. C, sec. 242S; Montana, C. C, sec. 1610; North Dakota, C. C, sec. 3584; South Dakota, C. C, sec. 981; Utah, Rev. Stats., sec. 1981; Oregon Codes and Statutes, sees. 5343-5349. See Forms, post, for all others. No. 4. — Statutory Form — Attorney in Fact — California, Idaho, Montana, North and South Dakota, Oregon. State of California, County of Yuba, — ss. On this third day of June, in the year IQO^, before me [here insert the name and quality of the officer], personally appeared A. B., known to me [or proved to me on the oath of C. D.], to be the person whose name is subscribed to the within instrtmient as the attorney in fact of A. B., and acknowledged to me that he subscribed the name of C. D. thereto as principal, and his own name as attorney in fact. NOTE.— California, C. C, sec. 1192; Idaho, C. C, sec. 2430; Mon- tana, C. C, sec. 1612; North Dakota, C. C, sec. 3584; South Dakota, C. C, sec. 980; Oregon Codes and Statutes, sees. 5343-5349. See Forms, post, for all others. No. 5. — Statutory Form — Prisoner Confined in State Peniten- tiary — California. State of California, County of Marin, — ss. On this jrf day of June, A. D. ipo6, before me, A. B., a notary public in and for the count}^ of Marin, state of California, per- sonally appeared C. D., a prisoner confined in the State Peniten- tiary* at San Quentin, Marin county, in the state of California, to me known to be the person whose name is subscribed to and who executed the annexed instrument, and I certify that I made him acquainted with the contents of said instrument and then ex- amined him separate and apart from all persons, and he, while so separate and apart, acknowledged to me that he executed the same freely, voluntarily, and without fear or compulsion, or un- due influence, and for the purpose therein mentioned ; and I fur- ther certify that I called upon A. L. G., and H. M. A., two repu- table and disinterested persons, to witness the execution of said in- strument. Witness : A. L. G. H. M. A. ♦Under the law certain prisoners are deemed civilly dead; but under the codes they are capable of making and acknowledging a sale or con- veyance of real property: Pen. Code, sees. 673-675. An act entitled "An act concerning conveyances," approved May 6, 1862, permits such acknowledgments and states what facts the certifi- cate shall set forth, and requires it to be witnessed by two reputable and disinterested witnesses: Stats. 1862, p. 496. Acknowledgment and Proof of Instrument. 5 General Note to Forms i, 2, 3, 4, 5. Under this head is collected many well-considered cases relat- ing to the duty and liability of public officers having authority to take and certify acknowledgments and proof of the execution of written instruments. Such responsibility is much greater than it is generally thought to be until an important mistake in the exe- cution of an instrument is made and discovered. Every lawyer of much experience knou's that grave mistakes in such matters are of daily occurrence, but are seldom discov- ered. Every notary public ought to be, but seldom is, as familiar with the law as adjudicated in the following notes as he sometimes i? vvith the statutes relating to his duties. The statute of limita- tions is the savior of ignorance and mistake. Acknowledgement and Proof of the Execution of Instruments, Gener- ally- — The act of a notary in taking an acknowledguuut of an instru- ment is not judicial: Bank of Woodland v. Oberhaus, 125 Cal. 32U, 57 Pac. 1070. The object is to entitle it to be used as evidence without further proof; without especially referring to it, the court clearly had in mind section 1948 of the Code of Civil Procedure, and Gordon v. City of San Diego, 108 Cal. 264, 41 Pac. 301. In Farmers' Bank v. Purdy, 130 Cal. 457, 62 Pac. 738, Mr. Cooper, commissioner, in writing the opinion of the court, said: "The only object of an acknowledgment is that the instrument may be recorded, unless the acknowledgment ia by statute made essential to the validity of the instrument," and re- fers to Civil Code, sections 1091, 1217, which section is not entirely in harmony with what was said in deciding Gordon v. City of San Diego, above cited. Acknowledgment certificates and proofs of ac- knowledgment are only prima facie true, if it is shown that the per- son named in the instrument did not appear before the oflicers who signed the certificate. In such case, the acknowledgment is void: Mes- nagcr v. ITamilton, 101 Cal. 532, 40 Am. St. Eep. 81, 35 Pac. 1054. Acknowledg:nent as Estoppel. — If the person named as grantor per- sonally appears before a notary and acknowledges the signature at- tached to the instrument as his own, he is estopped from denying his declaration, as well as his signature: Blasedell v. Leach, 101 Cal. 405, 40 Am. St. Rep. 65, 35 Pac. 1019. In that case the grantor did ajipear before the notary, did acknowledge her signature, and did acknowledge that she executed it, but thereafter it was discovered that the instru- ment was a grant instead of a lease, which she thouglit it was, and it was held that if others had innocently intervened, the declarations made before the notary estopped the grantor from denying the grant. Disqualification of OflB,cer Taking Acknowledgment. — OfTicers taking acknowledgments are not disqualified because they are agents of parties to instruments unless pecuniarily interested in the transaction: Bank of Woodland v. Oberhaus, 125 Cal. 320. 57 Pac. 1070. If the grantee is a notary and takes the acknowledgment, the deed is void; but if there are several grantees named in the grant with him, each taking a sep- arate, definite interest, the grant passes title to them, and the notary takes nothing but his fee: Murray v. Tulare Irr. Co., 120 Cal. 311, 49 Pac. 563, 52 Pac. 586. Identicr^ Names. — If the name of the notary who took the acknowledg- ment and '\i> name of the mortgagee in a mortgage are identical, and if made in the county of the residence of both parties, it will be pre- sumed that the notary and mortgagee were the same parson. Such ac- 6 New Book of Forms. knowledgjment is void, and the record of it docs not impart constructive notice to tliird parties: Lee v. Murphy, 119 Cal. 364, 51 Pae. 549, 955. As to the Venue. — The venue is to show that the official act is within the territorial jurisdiction of the officer. If a certificate of acknowledg- ment is taken before a justice of the peace of another county as pro- vided in section 1194 of Civil Code, a certificate of the county clerk must accompany it showing that when the acknowledgment was taken he was a justice of the peace of the venue county. If taken out of the county where he is justice of the peace, his act is void: MiddlecofE v. Hemstreet, 135 Cal. 173, 67 Pac. 768. Unacknowledged Grants. — Except as to the right of the grantee to record it, and thereby give notice to subsequent encumbrancers and pur- chasers, an unacknowledged grant (except also as to a person under disabilitv) is as good as any other. This is upheld in Hastings v. Vaugh, 5 Cal. 315; Ricks v. Eeed, 19 Cal. 515; Grant v. OUver, 91 Cal. 158, 27 Pac. 596, S61. Presumptions as to Acknowledgments and Proofs. — A certificate of ac- knowledgment is conclusive unless there is fraud, duress and imposition in connection with it, and unless the gi"antee was a party to it or had notice of it: Grant v. White, 57 Cal. 4S9; De Arnaz v. Escandon, 59 Cal. 486. It is alwavs presumed that it states the facts: Baldwin v. Born- heimer, 48 Cal. 433. The above rules do not apply to deeds executed by married women. In such instances the acknowledgment or proof is onlv prima facie true: Moore v. Hopkins, 83 Cal. 270, 17 Am. St. Rep. 248, 23 Pac. 318 (which is not gallant). raise or Defective Certificate — Damages. — Officers taking acknowl- edgments, by the same rule, are liable in damages for failure to perform their duty with integrity, diligence and skill: Fogarty v. Finley, 10 Cal. 239. A notarj' certified that the person who acknowledged before him the execution of a mortgage was known to be the person whose name ■was subscribed thereto, which was not true; but the person who made the acknowledgment was introduced to the notary as the mortgagor by an agent of the plaintiff in the action to recover damages because of his negligence; held that the notary was not responsible: Overacre v. Blake, 82 Cal. 77, 22 Pac. 979. If a notary certifies that he knows a person whom he does not know, he is liable, unless the negligence of the accusing party is the proxi- mate cause of the loss, which was the case in Overacre v. Blake. See, also, Hatton v. Holmes, 97 Cal. 208, 31 Pac. 1131. Murfey was a notary — Leroy was a cheat. Leroy introduced him- self to the notary as N. B. West. The true N. B. West owned land. Iieroy employed the notary to draw a deed from N. B. West to Hmry Harmon, which was done. Leroy signed and acknowledged the deed "N. B. West." The notary attached his certificate of acknowledgment and his Sfal, all in good form. Leroy, assuming to be Henry Harmon, •went to Oakland Bank of Savings, presented his deed, and represented himself to be Henry Harmon, grantee of N. B. West, and the bank loaned him monfv, secured, as it supposed, by a mortgage on the land described in the deed. The bank made the loan without inquiring as to the iden- tity of anybody connr-cted with the affair. It sued Notary Murfey and lost, because the negligence of Murfey (if he was negligent at all) was not the •lirect cause of the bank's loss: Oakland Bank of Savings v. Murfey, 68 Cal. 455, 9 Pac. 843. Negligence not Direct Cause of Loss. — As to a notary's negligence not being the direct cause of loss, see Hatton v. Holmes, 97 Cal. 208, 31 Pac. 1131. Measure of Damages. — The measure of damages against a notary for making a xalse certificate of acknowledgment is the amount which would Acknowledgment and Proof of Instrument. 7 be the value of the mortgage if genuine: Heidt v. Minor, 113 CaL 385, 45 Pac. 700. Excuse for Negligence. — In a recent California case it is said: "The plaintiff had the right to rely upon the certificate of the notary, and to presume, without question, that such officer had done his duty and the notary cannot excuse his negligence under such circumstances by the claim that the party who has been injured has trusted to his faithful performance of duty." That was said by the court in answer to the claim that because the plaintiff was guilty of some negligence in trust- ing everything to the notary, the notary was excused altogether for his own negligence. The court then continued: "The notary and his sure- ties ought to be held for all damages unless they have taken the pre- cautions expressly required by the statute"; and refers to section 1185, Civil Code, and says: "It is not enough that the person was introduced to the notary by a responsible person To take an acknowledg- ment upon such introduction without the [required by statute] oath, is negligence sufficient to render the notary liable in case the certificate turns out to be untrue The witness by whose oath the instrument is proven, .... when the person executing the instrument was not per- sonally known to the officer, must himself be known to the notary. This is implied by the requirement that the officer shall certify that such person is a credible ivitness. When these necessary facts do not exist, the notarv is expressly prohibited from taking the acknowledg- ment at all": Joost v. Craig, 131 Cal. 504, 82 Am. St. Rep. 374, 63 Fac. 840. When not Liable. — In deciding Joost v. Craig, the court said: "A notary may take all due precautions and fully comply with the statute and still be deceived. In such case he would not be held liable, but if he has not fully complied with the statute the rule announced" in State V. Meyer, 2 Mo. App. 413, which is now the rule in Joost v. Craig, "is not a whit too stringent." What may Happen Wl^en the Believed to be "Credible" Witness is Proved to be not "Credible." — In spite of all the courts have said or are reasonably liable to say, officers who may take acknowledgments are liable for their mistakes when they believe that an incredible witness is credible. If it should happen that a witness who was be- lieved by the officer to be "credible" to his neighbors, should hap- pen not to be so, the officer would be in grave danger. A credible witness is one who has a general reputation for truth, honesty and in- tegrity: C. C. P., sec. 2051. If the witness produced before the officer negatives either one of those conditions and if the officer is not aware of the fact that the credible witness is not credible where he is best known, and if the fact is proved that he is such in an action against the officer to recover damages on account of his false certificate, the situ- ation, as to him, would be grave, and the witness himself might be thrilled with surpri.ses. It seems to follow that the witness runs tl:i same risk as the notary, unless they are both sure of their ground, and no witness absolutely 'knows what his reputation is until he testifies against large money interests or family ties, when he may find all his enemies marshalled against him. A notary runs but little, if any, risk if he refuses employment and passes his customer and his fee on to a notars' wl o knows the customer well enough to take or decline the risk. Proof of Execution of Instruments Generally. — It is clearly the inten- tion of the Civil Code that the execution of written instruments may be established upon the happening of five different contingencies by proving the handwriting of the maker and of a subscribing witness, if there be one. Section 1948 of the Code of Civil Procedure permits all private writings, except last wills and testaments, to be proved and certified in the manner provided for the acknowledrrmrnt and proof of conveyances of real property; and when so acknowledged or proved S New Book of Forms. they are prima facie evidence of the execution of the writing in the same manner as if it were a conveyance of real estate. Section 1162 of the Civil Code provides that an instrument proved and certified pur- suant to sections 119S and 1199 may be recorded in the proper office if the original is at the same time deposited therein to remain for public inspection. Under section 1198 of the Civil Code, subdivision 1, when the parties and all the subscribing witnesses to an instrument in writing are dead, it may be proved, and when proved, if so entitled, may be recorded. It may be proved before any of the officers and their deputies who have authority to take acknowledgments or proofs, in or out of the state. Of those in the state, all are ministerial officers except the judges of courts of record and justices of the peace. When judicial officers perform duties, which they are obligated to do, they of course act judicially, and when they do things by authority of their office which are not judicial, they are said to act ministerially, and as a rule, under constitutions similar to that of California, they may or may not perform such so-called duties; for example, they need not take acknowledgments of deeds. Section 1198 contemplates that the proofs taken will "estab- lish" the instrument. When a thing is proved it is said to be "estab- lished." The effect of an acknowledgment of an instrument is to give it operation until the instrument is set aside by judicial process; but when an instrument is "established" by proof of its execution, its validity is deemed to be no longer questionable by the parties to it; but when section 1198 is read with sections 1202-1204, a bewildering distinction appears between an "established" instrument and a judg- ment that an instrument was executed. There it is provided that an action may be prosecuted in a court of record to obtain a judgment "proving" such instrument, and when judgment is obtained, a certified copy may be attached to the instrument, and when it is recorded, it has the same effect as if it were ' ' acknowledged. ' ' Necessarily in all pro- ceedings in courts of record the regular course of judicial proceedings would be followed, and the same effect ought to be given to a judgment proving that a certain instrument was executed as is given to all other judgments when the parties bound by it have had their day in court, which would seem to entitle such judgments to more consideration than an acknowledgment taken by a deputy county clerk or a justice of the peace. The framers of the law saw that injustice might be done, and provided in section 1162, Civil Code, that in all the cases mentioned in section 1198 the proved instrument should not be recorded unless the original was at the same time deposited in the recorder's office, there to remain for puVjlic inspection. That would be an excellent precaution as long as the instrument did remain in the recorder's office. In our time the provision for public inspection is practically a guaranty of its loss when- ever it is a menace to a great corporation's interests. Courts will, or if they will not, ought to, take judicial notice that records do not for- ever remain records, and that things deposited for safekeeping, even when a strong box is provided for their keeping, are not long kept when their krepers are subject to frequent change. When the original is lost a certified copy becomes practically the original, and then an honest in- strument may be discredited and a dishonest one credited. Legal Questions Involved. — The right to acquire, possess and protect property is not given us by virtue of article or section 1 of the constitu- tion of the state of California; it is a right every citizen of the United States of America acquires the instant he becomes such. That right cannot be impaired by the legislature: Billings v. Hall. 7 Cal. 1. The right to acquire is the right to use the proper means to attain that end: Ex parte Newman, 9 Cal. 502. The Eight to Acquire Property. — To acquire property it is necessary to have the right to use it. The right to use embraces the right to use Acknowledgment and Proof of Instrument. g it without obstruction. Land may be lawfully used as security for the repayment of borrowed money. A right to make use of land by selliii^ it or by exchange is of great value. It is sometimes better than "cash money" in hand. An annuity ia frequently of more value to the owner of land than the land. The rents being known, the immature and others may be provided for. If, under the provisions of law, land has been so bound or burdened, even for any appreciable period of time, that it will put the owner or possessor of it to any physical exertion, or to the expenditure of time or money to remove the encumbrance or cloud of title without having had his day in court, he has been deprived of the right to acquire property by the use of other property. All this may be done under the provision of section 1198 of the Civil Code. Due process of law requires a trial goverucd by the established rules of evidence, and a procedure suitable and proper to the nature of the case and sanctioned by the established usage and customs of the courts: San Jose Eanch Co. v. San Jose etc. Co., 126 Cal. 322, 58 Pac. 824. Legislative, Executive and Judicial Departments of the Government. — No person charged with the exercise of powers properly belonging to one department of the government shall exercise any functions apper- taining to either of the others: Const., art. 3. Under this head a notary public has been selected as a sample min- isterial officer. He operates within the lines of the executive depart- ment. It has been said in several states that when he takes acknowl- edgments of grants of land that he acts quasi judicially. Quasi Officers.— In Joost v. Craig, 131 Cal. 540, 82 Am. St. Eep. 374, 63 Pac. 840, it is said he is not even a qxiasi of any description, but is altogether statutory. Every lawyer knows that there is a very fine mental line drawn between ministerial and judicial duties; and the word "quasi" is used to express the thought that a ministerial officer is partly on the judicial side of the line and partly on the other side. In short, he is on neutral ground, but he must not encroach further, and when judicial officers are on the executive or ministerial side, they go there not because their duties compel it, but to oblige; therefore quasi ministerial officers are seldom, if ever, encountered in law books; probably because it might be contemptuous in a writer to refer to such a remote possibility. Judicial Functions. — It would seem that when a notary public takes proof of handwriting under section 1198 of the Civil Code, if he does his work so that the execution of tlie instrument will be estab- lished he will be, to a great extent, exercising judicial functions. To establish or prove the execution of written instruments, interpreters may be sworn, cameras employed, and all the machinery of the law of evidence as wTitten in and out of the Code of Civil Procedure put in operation, which is as much as the courts of record have authority to do. It seems that the legislature has expressly, in sections 1203, 1204, above referred to, attempted to confer concurrent power on notaries public that courts of record have always enjoyed and now enjoy to the same extent as if such jurisdiction had not been conferred by statute on such notaries and others who may take such proofs. The legislature has no power to confer other than judicial power upon the courts: Burgoine v. Supervisors, 5 Cal. 9; Hardenburg v. Kidd, 10 Cal. 402; and therefore, vice versa, it cannot confer judicial powers on takers of acknowledgments. A judge may not even fix the salary of his own reporter: Smith v. Strother, 68 Cal. 194. 8 Pac. 852; but after the services are rendered he may judicially determine their value: Stevens v. Truman, 127 Cal. 155, 59 Pac. 397. Strictly, he has no such autl-.irity, except after process served, and the person who must pay the bill has had his day in court. 10 New Book of Forms. Po'vrers of OfScers Who may Take Acknowledgments and Froo^?. — They may issue warrants for the arrest of Tritnesscs who refuse to re- spond to their subpoenas, and the sheriff of the county is commanded to obey the orders and commitments of such officers in the same manner as process is issued by the superior court: C. C. P., sec. 1994. It has been held that a superior court has no authority to pvmish a witness for refusing to obey a subpoena issued by a notary public com- manding him to appear and give his deposition in a case regularly be- fore the notary for such purpose: Lezinsky v. Superor Court, 72 Cal. 510, 14 Pac. 104. The California statute (county government bill) gives courts of record authority to punish disobedience of a subpoena issued by a county board of supervisors commanding a person to appear and testify before it or its committee. A board of supervisors not being a judicial tribunal within the meaning of the constitution, it is difficult to uphold such legislation; but it is easy to cause such disobedience to be punished as a misdemeanor, there being a wide difference between de- fining contempts and punishing them. Acknowledgment Defectively Certified. — When an acknowledgment or proof of an instrument is properly made, but defectively certified, it may be corrected by action in a superior court: C. C, sec. 1202. If the officer making the certificate acted in a judicial capacity, he would have authority to correct his own mistakes: See Wedel v. Herman, 59 Cal. 507. He derives his power from the statute. Each acknowledgment is a special proceeding. When he takes it and delivers it he is discharged from all further authority, and cannot alter in the most minute par- ticular the sense of his certificate: Bours v. Zachariah, 11 Cal. 281, 70 Am. Dec. 779. As to actions to correct such certificates, see Brown v. Eouse, 93 Cal. 237, 28 Pac. 1044; Hutchenson v. Ainsworth, 63 Cal. 286; Poledori v. Newman, 116 Cal. .?75, 48 Pac. 325. A deed duly executed, but not properly acknowledged or recorded, passes the grantor's interest except as to subsequent purchasers in good faith and for a valuable consideration: Eicks v. Eeed, 19 Cal. 551; Hast- ings V. Vaughn, 5 Cal. 315. See, also. Grant v. Oliver, 19 Cal. 158. In such cases it would seem (when the rights of subsequent purchasers in good faith, etc., are not involved) that the officer ought to have au- thority to correct his mistake. Responsibility of Judicial and Ministerial Oflicers in Taking Proof of Acknowledgment. — As the law now reads in the California codes, as construed by its supreme court, a notary public acts ministerially and not judicially. The court in Joost v. Craig, 131 Cal. 504, 82 Am. St. Rep. 374, 63 Pac. 840, appears to have reached that conclusion, because it relies upon section 801 of the Political Code, which says: "For the official misconduct or neglect of a notary public, he and his sureties on his official bond are liable to the parties injured thereby for all dam- ages sustained." "That statute," the court says in that section, "sets at rest one of the contentions of respondent that in taking an acknowl- edgment a notary acts judicially, and is, therefore, not liable in dam- ages for mere negligence." The attorney for the respondent, in Joost v. Craig, was not entirely justified in that contention by his citation of the case of Wedel v. Herman, 59 Cal. 507, 513. In Wedel v. Herman, the court said, but did not decide, because it was not material to the decision, that: "In taking an acknowledgment, the officer |a notary in that case] acts 'judicially'; and for that reason if he blunders in cer- tifying to an acknowledgment, or makes a defective or false certificate, he cannot alter or s^end it." In Bank of Woodland v. Oberhaus, 125 Cal. 320, 57 Pae. 1070, Judge Van Dyke, speaking for the court, said: "In this state a notary does not exercise judicial functions. The constitution, article 6, prescribes Acknowledgment and Proof of Instrument. ii where the judicial power is lodged, and what courts and officers exercise judicial power, and notaries public are not includrd in it." In People v. Bush, 40 Cal. 344, the court in substance says: "A judi- cial officer may lawfully perform ministerial duties. A judge may take acknowledgments, and solemnize a marriage; such acts are ministerial." In Pickett v. Wallace, 55 Cal. 557, the only point was the sufficiency of a complaint in an action to recover damages against the judges of the California supreme court "for willfully and maliciously adjudging the plaintiff to be guilty of contempt," and ord(^ring him to be impris- oned. The court said: "We are not aware of any principle upon which this action can be maintained. The court had jurisdiction of the subject matter of plaintiff's contempt." In Bradley v. Fisher, 13 Wall. (U. S.) 335, 20 L. ed. G46, it was held that judges of courts of record of superior or general jurisdiction are not liable in civil actions for their judicial acts, even when their acts are in excess of their jurisdiction, and are alleged to have been done corruptly and maliciously. The same point was also decided in Turpin V. Booth, 56 Cal. 65, 38 Am. Kep. 48. It appears, therefore, that in California and in other places where the laws are the same as ours that all the officers -mentioned in sections 1180, 1181, 1182, 1183, 1184, California Civil Code, may take and certifv the proof of acknowledgment, and are liable in damages because of their mistakes; but in states where it is held by the courts or provided by law that taking the proof or acknowledgment of an instrument is a judicial, or perhaps quasi judicial act, it seems to follow that such offi- cers are not liable in damages. The following cases hold that the taking of an acknowledgment is a quasi judicial act: People v. Bartels, 138 111. 322, 27 N. E. 1091; Wasson v. Connor, 54 Miss. 351; Long v. Crews, 113 N. C. 256, 18 S. K 49i); Beamaa v. Whitney, 20 Me. 413; Groesbeck v. Seeley, 13 Mich. 329; Davis v. Beazlev, 75 Va. 491; Bowden V. Parrish, 86 Va. 67, 19 Am. St. Eep. 873, 9 S. E.'616; Brown v. Moore, 38 Tex. 646, and many others. In California if a justice of the supreme court, or a judge of a superior court, should execute a fatally defective certificate, he would not be liable if he acted judicially, and would have authority to correct his mistake. Acknowledgment by Married Women, Prior to July 1, 1891. — A certifi- cate of acknowledgment is merely evidence to show that the contract is her act: Smith v. Green, 31 Cal. 31. All her conveyances are invalid unless executed in the manner required by law: Landers v. Bolton, 26 Cal. 393, cited in Wambole v. Toole, 2 Dak. 23, 2 N. W. 239. As the law stood prior to the codes, execution, acknowledgment and certifie-i- tion were essentials to the conveyance of her estate. Under the codes the certificate is not a part of the conveyance, but is regarded as record proof of her acknowledgment of it: Wedel v. Herman, 59 Cal. 507. The law requiring conveyances by married women to be acknowledged in a particular manner applies to all such without any exception as long as the marital relation exists, and relates also to their separate propertv: Danglarde v. Elias, 80 Cal. 65, 22 Pac. 69; Banbury v. Arnold. 91 Cal. 606, 27 Pac. 934. There must be private examination of the wife, sep- arate and apart from her husband: Kendall v. Miller, 9 Cal. 591; Tolman v. Smith, 74 Cal. 349, 16 Pac. 189. Without such examination her deed conveys no title whatever: McLeran v. Benton, 43 Cal. 467, and oth'^r cases down to Bollinger v. Manning, 79 Cal. 7, 21 Pae. 375, cited in 2 Dak. 23. Certificate must state that the contents of the deed were explained to her: Pease v. Barbiers, 10 Cal. 436. if the certificate states that she was made acquainted with the con- tents of the instrument without stating who made her acquainted with the contents, it is valid: Jansen v. McCnhill, 22 Cal. 563, S3 Am. Dec. 84. The words "made her acquainted by me" are surplusage: Societe 12 New Book of Forms. Francaise v. Beard, 54 Cal. 480. If the woman understood English there was no necessity for an interpreter to make her acquainted with the contents of the instrument: Pfeiffer v. Rein, 13 Cal. 643. A notary need not explain the contents of a document referred to in a convey- ance: Bull V. Coe, 77 Cal. 54, 11 Am. St. Rep. 235, 18 Pac. 808. If a married woman obtains a decree of divorce which is void, but she assumes her maiden name, lives apart from her husband, and continu- ously acts and represents herself as a feme sole, a conveyance of her separate estate made and acknowledged by her as an unmarried woman is valid: Reis v. Lawrence, 63 Cal. 129, 49 Am. Rep. 83 To the same effect. Hand v. Hand, 68 Cal. 135, 58 Am. Rep. 5, 8 Pac. 705. Her deed, if not properly acknowledged, is void: Bollinger v. Manning, 79 Cal. 7, 21 Pac. 375. And the same as to her separate property: Ewald v. Cor- bett, 32 Cal. 493, cited in 2 Dak. 23, 2 N. W. 239. When her acknowl- edgment has been properly taken, though defectively certified, her con- veyance has the same legal effect as the deed of a single woman: Wedel v. Herman, 59 Cal. 507, Acknowledgment by a married woman is an essential part of the exe- cution of a conveyance from her, without which it has no validity: Mathews v. Davis, 102 Cal. 202, 36 Pac. 358. As late as March, 1904, notwithstanding the attempted legislative abolition of all distinctions between conveyances executed by men and women, it has been decided that a deed signed and delivered, except where a married woman is a grantor, is good, and operates to convey the title: Gordon v. City of San Diego, 108 Cal. 264, 41 Pac. 301; Loupe v. Smith, 123 Cal. 491, 56 Pac. 254. Conclusiveness of Certificates of Acknowledgments. — As to married women, the American states usually make the acknowledgment part of the execution of a deed, etc., and it has no effect unless it has been acknowledged before a proper officer, and except where provision is made for the perfection of imperfect certificates, the absence of a suffi- cient certificate is fatal to a married woman's deed. Though the cer- tificate is in every respect perfect, she may insist that it is false; and then the question arises, Is it conclusive against her, or is it only prima facie evidence of the contents of the certificate? At this point there is a great difference of opinion. If the taking of an acknowledgment is a judicial act, then it would seem that the certificate is conclusive. If it is not, then, in the absence of a statute that it shall be conclusive, it ought not to be conclusive. Is the Taking of an Acknowledgment a Judicial Act Under Statutes'' The California codes and all the codes and other laws of states and ter- ritories west of the Rocky Mountains authorize judicial as well as min- isterial officers to take and certify acknowledgments and proof of in- struments; and at least ninety per cent of acknowledgments are taken by ministerial officers such as notaries, court clerks and their deputies, recorders of deeds, etc., and their deputies. It has been said that it is difficult to understand why the duties per formed by ministerial officers in taking acknowledgment of writings are any more judicial in their character than are their duties when they present a negotiable instrument for payment; and if not paid, make a certificate showing that the instrument was dishonored. Nevertheless the courts of Illinois, Pennsylvania, Virginia, and West Virginia and others, have said that the duties performed in the acknowledgment of a deed by whomsoever it may have been performed are judicial in their nature and to some extent at least in their effect: See note to American Freehold Co. v. Thornton, 54 Am. Rep. 150, 151. In .Joost v. Craig, 131 Cal. 504, 82 Am. St. Rep. 374, 63 Pac. 840, it is said that because a eection of the Political Code makes a notary and his bond liable for official mistakes, etc., and, for that reason, in Talifornia, he docs not act judicially in taking acknowledgments. In Bank of Woodland v. Ober- Acknowledgment and Proof op Instrument. 13 haus, 125 Cal. 320, 57 Pac. 1070, it was said without qualification that a notary in taking an acknowledgment acts ministerially and not ju- dicially. In Hitz V. .Tenks, 123 U. S. 297, 18 Sup. Ct. Rop. 143, 31 L. ed. 15C, it is said that the duty of examining the wife apart and from her husband, of t'X[il:uiiing the instrument to her, and of ascertaining if she executed it with her own free will is a judicial or quasi judicial act. It con- cludes by saying: "The reasonable, if not the necessary, conclusion is, that, except in case of fraud, the certificate, made and recorded as the statute requires, is the sole and conclusive evidence of the separate ex- amination and acknowledgment of the wife"; that is to say, the act of taking it is judicial. Effect of the Law as Stated in Hitz v, Jenks. — Whenever the decision in Hitz v. Jenks, above cited, is followed, a certificate of acknowledg- ment signed and attested in due form of law will have the conclusive- ness of a judgment. The judgment (certificate) of the ministerial officer will be final. It cannot be attacked except upon the same grounds available to avoid a judgment of a court of general jurisdiction. There being no appeal from the judgment granting the certificate of acknowl- edgment, it may be shown that the officer who took it had no jurisdiction over the parties, or the subject matter of the instrument acknowledged, or a bill in equity would lie to set it aside upon the same grounds that courts of equity will grant relief when the judgment of a court is at- tacked. Such relief would not be available against an innocent encum- brancer. The courts that hold that a judgment cannot be attacked except upon statutory grounds will hold the same as to "certificates of acknowledgment judgments." Want of Jurisdiction to Take an Acknowledgment or Proof of Execu- tion- — Some cases hold that a certificate of acknowledgment is not sub- ject to disapproval except for fraud, accident or mistake of which the person reiving upon the acknowledgment had no notice: Graham v. Anderson, 42 111. 514, 92 Am. Dec. 89. In Kerr v. Russell, 69 111. 666, 18 Am. Rep. 634, it was said: "No man would be content with his title, in all respects perfect upon its face, if it could be inquired intq. Who would take a deed to which a married woman is a party with the probable direful results of having it set aside staring him in the face? Everything relating to titles would be thrown into confusion, and irretrievable mischief would be the certain conse- quence." It does not seem to be probable that Kerr v. Russell will be followed except where the statutes make certificates of acknowledgment final except upon the allegation of fraud. The state of Kentucky has such a statute, and there it has been held that an acknowledgment could not be impeached on the gi-ound that it was taken by the officer out of the county in which he was authorized to act, and in which the certificate stated the acknowledgment was taken: Davis v. Jenkins, 93 Ky. 353, 40 Am. St. Rep. 197, 20 S. W. 283. Even in those states where the taking of certificate is deemed a judicial act, and which are not controlled by statutes like the one of Kentucky, it may be impeached by proof that it was entirely false, and that there was no appearance before the officer and no authorization to him to certify the acknowledgment: Grider v, American Co.. 99 .\la. 281, 41 Am. St. Rep. 58. 12 South. 775; Donohae V. Mills, 41 Ark. 421; Smith v. Ward, 2 Root, 378, 1 Am. Dec. 80; Phillips V. Bishops, 31 Neb. 853, 48 N. W. 1106; Williamson v. Carksadden, 36 Ohio St. 664: Miehener v. Cavender, 38 Pa. St. 334. 80 Am. Dec. 486; Peckens v. Kinsley, 29 W. Va. 1, 6 Am. St. Rep. 622. 1 S. E. 932. Where There was an Appearance, but the Certificate is False. — In states where the officer's acts are deemed to be judicial, no error on his part can render his certificate void if his certificate states sufficient "facts" which were not true. For example, where he did not inform a 14 New Book of Forms. wife of the contents of a deed, did not examine her apart from her husband, and in fact the wife was coerced by her husband to execute the deed, the certificate is impregnable. Such deeds may be avoided on account of fraud or duress, but the instrument will not be permitted to operate against innocent purchasers or encumbrancers in good faith and for a valuable consideration: Gidden v. Boiling, 99 Ala. 319, 13 South. 511; Grider v. American Co., 99 xVla. 281, 42 Am. St. Rep. 58, 12 South. 775; Holt v. Moore, 37 Ark. 145; Meyer v. Gossett, 38 Ark. 377; Donohue v. Mills, 41 Ark. 421; Petty v. Grisard, 45 Ark. 117; Baldwin V. Snowden, 11 Ohio St. 203, 78 Am. Dec. 303; Heeter v. Glascow, 79 Pa. St. 79, 21 Am. Rep. 46; Singer Co. v. Root, 84 Pa. St. 442, 24 Am. Rep. 204; Webb v. Burney, 70 Tex. 322, 7 S. W. 841; Hitz v. Jenks, 123 U. S. 297, 18 Sup. Ct. Rep. 143, 31 L. ed. 156. All the courts agree that where the certificate states that the party appeared before the officer, but in fact he did not appear before him nor authorized him (in advance) to certify that such acknowledgment was made, that it is not material whether the act of taking the ac- knowledgment is or is not judicial; for if it be judicial, the officer had no jurisdiction to take it. The same rule would apply to a judgment of a court of general jurisdiction, but more strictly construed against the judicial than against the ministerial officers of low degree. The following authorities appear to agree in the substance of the fore- going, and some hold that the officer acts judicially or quasi judicially, and others that he acts only in a ministerial capacity: Holt v. Moore, 37 Ark. 145; Moore v. Hopkins, 83 Cal. 270, 17 Am. St. Rep. 248, 23 Pac. 318 (except that ease, Moore v. Hopkins, carefully attempts to make a dis- tinction between a certificate of acknowledgment attached to a deed of conveyance and one attached to a release of debt, and bases its distinc- tion upon section 1948, Code of Civil Procedure, which declares that such an instrument is only prima facie evidence of its execution, the same as if it were "a conveyance of real estate"); Vanormon v. McGregor, 23 Iowa, 300; Borland v. Walrath, 33 Iowa, 130; Dodge v. Hollingshead, 6 Minn. 25, 80 Am. Dec. 433; Edgerton v. Jones, 10 Minn. 247; Pierce v. Georger, 103 Mo. 540, 15 S. W. 848; Barrett v. Davis, 104 Mo. 549, 16 S. W. 377; Comings v. Leedy, 114 Mo. 454, 21 S. W. 80 i; Jackson v. Schoomaker, 4 Johns. 161; Jackson v. Perkins, 2 Wend. 308. In Texas a notary was present when a witness was being examined by an officer who was taking his deposition. He testified that he exe- cuted a certain instrument. The notary, without the request of the witness, attached his certificate of acknowledgment to it. Held, that the witness did not intend by his evidence to authorize such certificate of acknowledgment: BrietUng v. Chester, 88 Tex. 586, 32 S. W. 527. Impeachment as to Married Woman. — The decisions of several states clearly indicate that a married woman's acknowledgment may be im- peached even against an innocent purchaser if it appears that she did not understand the instrument, or because she was not informed of the contents, or because she was not examined separately and apart from her husband: Dodge v. Hollingshead, 6 Minn. 25, 80 Am. Dec. 433; Edgerton v. Jones, 10 Minn. 427; Wannell v. Kern, 57 Mo. 478; Steffen V. Bauer, 70 Mo. 399; Mays v. Pryce, 95 Mo. 603, 8 S. W. 731; Hays v. Hays, 5 Rich. 31; Garth v. Fort, 15 Lea, 683. The great mass of authority is said to be against this view. They are said to hold that such acknowledgments of a married woman can- not be impeached except for duress or fraud, and then only against persons having notice thereof, and when an officer has authority, his certificate cannot be impeached by proving that he did not perform hig duty in some respect, and that he did not inform the wife of the con- tents of the instrument on an examination without the hearing of her husband: See note to American FVeehold Co. v. Thornton, 54 Am. St. Rep. 155, where more than forty authorities are cited to uphold the Acknowledgment and Proof oe Instrument. 15 text, and among them, Banning v. Banning, 80 Cal. 271, 13 Am. St. Rep. 156, 22 Pac. 210, which only docidcs that when a certificate of acknowl- edgment of a deed from a married woman is in duo form, and is not inificachod for fraud, duress or mistake, it is conclusive of the facts therein stated by the notary, and cannot be impeached by evidence that the notary took her acknowledgment by telephone when he was three miles distant from her. Burden of Proof. — The burden of proof to attack a certificate of acknowledgment is always on the party that assails it; See note to American Freehold Co. v. Thornton, ."34 Am. Rep. 157. The Assailant Ought to be Corroborated. — As a general proposition, a certificate of acknowledgment will not be disregarded upon the evi- dence of the grantor alone: See note to American Freehold Co. v. Thornton, 54 Am. Rep. 157. The Officer as a Witness. — One question is, Will the officer who takes the acknowledgment be permittted to impeach his own certificatef Some eases hold that it is against public policy to permit him to do so, but othrrs seem to hold that it is ^^ermissihle: See note to American Free- hold Co. V. Thornton, 54 Am. Rep. 157. Interest of Officer Taking an Acknowledgment — Its Effect on the Instrument. — An officer cannot take an acknowledgment of an instr-i- ment to which he is a party or in which he is directly interested. That rule is believed to be universal. The instrument remains good between the parties to it and those having actual notice of its existence; the effect is upon its right to registration or recording. It has no right to be registered or recorded if the instrument shows on its face that it was acknowledged before a party to it: Condensed from note to Cooper V. Hamilton, 56 Am. St. Rep. 799, 800. Officer's Interest not Appearing in the Instrument. — An acknowledg- ment taken by a magistrate bound by contract to procure a wife to join with her husband in a deed to a third person is disqualified to take her acknowledgment on account of interest. Such a deed would not be admitted in evidence as notice. A number of cases maintain that if it does not appear on the face of the instrument, or otherwise, that the olficer was disqualified to act by reason of interest, the instrument is entitled to record, and such record becomes notice to subsequent purchasers, creditors or encumbrancers. A recorder has no authority to dig below the surface of an instrument to discover defects. The fact that the officer taking the acknowledg- ment of a mortgage negotiated the loan secured does not render the mortgage fraudulent unless it is shown that the officer has an in- terest in either the lien or the note secured. It has been held that a notary not named in the instrument was competent to take acknowl- edgment and certify a deed of trust, although he was interested as one of the beneficiaries of the trust. A record of a deed cannot be do>- stroyed by parol evidence that the officer before whom it was acknowl- edged had an interest in the land not disclosed by the deed and ac- knowledgment: Condensed from note to Cooper v. Hamilton, 56 Am. St. Rep. 799, 800. Relationship. — As a rule, an acknowledgment is not inv^alidated by the fact that the officer taking it is related by blood or marriage to the parties to the instrument, because the taking is a ministerial, and not a judicial, act. Consequently a commissioner of deeds may take an acknowledgment, though so related to the parties to it as to be disqualified to act as judge or juror in a trial where they are parties. It has been said that a justice of the peace is not disqualified by his relationship to the parties from taking the acknowledgment of a d<^ed in which his father is grantor and his wife is the grantee. An acknowl- edgment taken by a notary who is a nephew of a party to it is valid, i6 • New Book of Forms. though he is active in procuring its execution, but is neither a party nor beneficially interested in its execution or delivery. An acknowledg- ment of a mortgage taken by the brother in law of the mortgagee is not illegal, nor is its record bad. An acknowledgment of a mortgage made to a married woman is not invalid, though taken before the hus- band of the mortgagee; but it would be bad when the husband is the procuring cause of the mortgage having been made: Condensed from note to Cooper v. Hamilton, 56 Am. St. Rep. 799, 800. Attesting Witness. — An officer who is an attesting witness to a deed is not incompetent to take the acknowledgment of its execution. If the certificate was given by a commissioner of deeds, who was also an attesting witness, and the facts do not appear from the deed itself, it is admissible in evidence if regularly recorded: Condensed from note to Cooper v. Hamilton, 56 Am. St. Eep. 799, 800. Agent cr Attorney. — An officer who identifies himself with a transac- tion evidenced by a written instrument, by placing his name on the face thereof as the avowed agent of one of the parties, is incompetent to take the acknowledgment of it. Otherwise, it is said the mere agency of the officer does not disqualify him. Thus, a notary who acts as agent for the mortgagor in obtaining a loan secured by the mort- gage is not so interested as to be disqualified to take the acknowledg- ment of the mortgage. If the officer, as agent, secured the loan and was a partner of the mortgagor, he was not disqualified to take the acknowledgment of its execution unless it is shown that he was a party in interest. A notary who is also a deputy sheriff may take the sheriff's acknowledgment of a deed under foreclosure of a mortgage on the premises described in the mortgage, and a deputy county clerk may take the acknowledgment of a deed to the county clerk; but a deed of a married woman acknowledged before the husband of the grantee, who is the procuring cause of its being made, is void: Condensed from note to Cooper v. Hamilton, 56 Am. St. Eep. 799. 800. Representatives of Corporations. — If such have authority to execute deeds in its behalf they may take the acknowledgments of such deeds. An officer of a corporation Whose duty it is to countersign and register its deeds is not disqualified from taking the acknowledgment thereof as a notary public when his signature is not necessary to the validity of the instrument. A member of a purely eleemosynary corporation, al- though he receives a small amount of payment for attending its meet- ings, and acting as its secretary, is not disqualified from taking the acknowledgment of a grantor in a deed of trust to secure a debt due to Buch corporation. A notary who was secretary and treasurer of a corporation took the acknowledgment of a mortgage made to it; it not being shown that he was a stockholder, and as such was interested beneficially, the acknowledgment was good: Condensed from note to Cooper V. 'Hamilton, 56 Am. St. Eep. 799, 800. Attorney at Law. — An attorney at law may, as notary, take the ac- knowledgment of a deed of either husband or wife. The fact that the attorney taking the wife's acknowledgment of a mortgage upon her separate property to secure her husband 's debts is the general attorney for the husband, but has no interest in the transaction, does not dis- qualify him. A notary who is the attorney of one of the parties to an iBBtrument but is not interested in it may take the acknowledgment to it. It has been held that a notary, who is attorney for a mortgagor, ig disqualified to take the mortgagee's acknowledgment to the mortgage, and that a mortgage recorded on such an acknowledgment is not legally recorded and does not constitute constructive notice. If an attorney acts for both parties in the preparation of a mortgage, he is not thereby diaqualifird from attesting it, and his attestation as a notary entitles the instrument to be recorded; and the fact that be is subsequently Acknowledgment and Proof of Instrument. 17 employed to foreclose the mortgage does not relate back to and affect the validity of his attestation: Condensed from note to Cooper v. Hamilton, 56 Am. St. Eep. 799, 800. Certificate or Proof of Acknowledgment of Written Instru- ments — Who may Take. — A justice or clerk of the supreme court and a judge of the superior court, at any place in the state. NOTE.— California C. C, sec. 1180; C. C. P., sec. 179; Idaho, C. C, sec. 2419; Montana, C. C, sec. 16U0; North Dakota, C. C, sec. 3573. Oregon: The law is very simple and sensibly brief. A conveyance executed within the state must be acknowledged before a judge of the supreme court, county judge, justice of the peace, or notary pub- lic within the state. The only statutory forms are expressly directed to be used by justices of the peace presumptively, because, being in good form for a justice of the lowest court, they would also be in good form for a judge of the highest and all intermediates: See post, Forms, Oregon. Oflicer taking it must indorse thereon a certificate of the acknowledgment thereof, and the true date of making the same: Codes and Statutes, sec. 3542. If executed in any other place in the United States, it may be exe- cuted according to the laws — state, territory or district — where executed before a judge of a court of record, justice of the peace, or notary public, or other officer authorized by the laws of such places to take acknowledgments; or by a commissioner appointed by the governor of Oregon for such purpose: Id., sec. 5343. If it is taken before any officer except a commissioner appointed by the governor aforesaid, a notary public, under his seal, or before a clerk of record under the seal of his court, it must have attached to it a cer- tificate of a clerk of a court of record, of the county or district, under the seal of his office, that the person who subscribed the certificate of acknowledgment was at its date the officer he is therein represented to be, and that he believes the signature of such person to be genuine, and that the conveyance is executed according to the laws of the place where executed: Id., sec. 5344. A conveyance executed in a foreign country may be executed accord- ing to its laws, and acknowledged before a notary public, a minister plenipotentiary', extraordinary', resident, charge d'alTaires, commissioner or consul of the United States, appointed to reside therein. The officer must certify to it, and a notary must affix his seal: Id., sec. 5345. A married woman's acknowledgment to a conveyance of land in the state is taken the same as if she was unmarried: Id., sec. 5346. If a married woman not residing in Oregon joins her husband in a convey- ance of land there, the acknowledgment may be taken as if she were sole, and with the same effect: Id., sec. 5348. "No acknowledgment of any conveyance having been executed shall be taken by any officer unless he shall know, or have satisfactory evi- dence that the person making such acknowledgment is the individual described in and who executed such conveyance": Id., sec. 5349; and that is the law and all the law of Oregon upon the subject of taking and certifying acknowledgments of conveyances of land. Under section 5349 all the statutory forms of acknowledgments in this book printed are more than sufficient in Oregon, except when taken by a justice of the peace. In such case, notwithstanding the fact that section 5346 above referred to makes no distinction between her acknowledgment and her husband's, if it is taken by a justice of the peace the following form must be used: See Oregon Forms, post. In the State. — Within the city and county, county, or dis- trict for which the officer was elected or appointed, before either New Forms — 2 i8 Ne:w Book of Forms. a clerk of a court of record ; or a county recorder ; or a court com- missioner ; or a notary public; or a justice of the peace within his city and county. A judge of a police or other inferior court within his city and county, city, or town. NOTE.— California, C. C, sec. 1181; C. C. P., see. 179. Alaska: Before any judge, clerk of a district court, notary public, or commissioner within the district: Codes, pt. 5, c. 11, sec. 82, p. 370. Arizona: A cleriv of a court having a seal, a notary public, county re- corder, justice of the peace: C. C, par. 740. Colorado: Before a judge of any court of record, its clerk, or deputy, tinder the court's seal; the clerk or recorder of a county, or his deputy, under the seal of the county, or a notary public under his seal, or before a justice of the peace in his county. If the instrument acknowledged before a justice of the peace is for the conveyance of lands beyond his county, then the county clerk and county recorder shall certify under the county seal to the official capacity of the justice, and that the sig- nature is the true signature of the justice; a clerk of the United States district court for Colorado: Mill's Stats., sees. 439, 442. Idaho, C. C, see. 2420, the same as in California. Montana, C. C, sec. 1601, the same as in California, except a court commissioner. Nevada: A judge or clerk of a court having a seal, a notary public or justice of the peace: Comp. Laws, sec. 2642. In New Mexico "before any court having a seal, if by any judge, jus- tice of the peace or clerk, in the same manner," or "by any justice of the peace of the county wherein said real estate is situated": Comp. Laws, sec. 3944. North Dakota, C. C, stv;. 3574, with the addition of "a mayor of a city, register of deeds. United States circuit or district court commis- sioner, and county auditor." South Dakota, C. C, sec. 971, with the same exception. By a judge or clerk of a court having a seal, a notary public, county clerk or county recorder: Rev. Stats., sec. 1985. Washington: Acknowledgments of instruments may be taken before a judge of the supreme court, or the clerk or deputy clerk, a judge of the superior court, or the clerk, or the deputy clerk, a justice of the peace, a county auditor, or the deputy auditor, or a notary public: Bal- linger's Codes, sec. 4526. Wyoming: By a judge or clerk of a court of record, or any court commissioner appointed under or by authority of the laws of the United States, any county clerk, justice of the peace, or notary public within the state. Any clerk of a court of record within or without the state: Rev. Stats., sees. 2471, 2472. Without the State, in the United States, and within the ju- risdiction of the officer, either a justice, judge or clerk of any court of record of the United States ; or a justice, judge, or clerk of any court of record of any state ; or a commissioner appointed by the governor of this state for that purpose ; or a notary public ; or any other officer of the state where the acknowledgment is made authorized by its law^s to take such proof or acknowledg- NOTE.— California, C. C, sec. 1182. Alaska: Deeds to be executed according to law of place where exe- cuted and be acknowledged before any judge of a court of record, justice of the peace or notarj' public or other officer authorized by the laws of the place to take acknowledgment of deeds therein or before any com- Acknowledgment and Proof of Instrument. 19 misaioners appointed for that purpose: Codes, pt. 5, c. 11, sec. 82, p. 371. In such cases if the acknowledgment is not taken under the seal of a notary public or the seal of a clerk of a court of record, it must have a certificate of a clerk of a court of record, that the acknowledging ofTicer was at the date thereof such as he is therein represented to be, and that he believes the signature of such person subscribed thereto to be genu- ine, and that the deed is executed according to the laws of such state, territory or district: Id., sec. 84, p. 371. Arizona: A clerk of a court of record having a seal, a notary public, county recorder, justice of the peace: C. C, par. 741. Colorado: A secretary of state, clerk of a court of record having a seal, a notary public, a commissioner of deeds for Colorado, or be- fore any other officer authorized by law to take acknowledgments. All such officers must certify under their official seal, and when the acknowledgment is taken by anj- of the officers not above ex[)ress!y named, the same certificate prescribed in note 4 to section 1181, Cali- fornia Civil Code, supra: Mill's Stats., sec. 439. Idaho, C. C, sec. 2421, and Montana, C. C, sec. 1602, the same as in California. Nevada: A judge or clerk of any court of the United States, or of any state or territory having a seal, or by a commissioner appointed by the governor of Nevada, or by a justice of the peace of any county of any state or territory in the United States accompanied with 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: Comp. Laws, sec. 2642. In New Mexico, "before any United States court or court of any state or territory, within said United States, having a seal, or by any clerk of any of said courts": Comp. Laws, sec. 3944. Or before any no- tary public having a seal, or before any clerk of any court of record, having a seal: Id., sec. 3931. North Dakota, C. C, sec. 3.575, the same as in California. South Dakota, C. C, sec. 972, the same. Utah: By a judge or clerk of any court in 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 the state for that purpose: Rev. Stats., sec. 1985. Washington: Deeds or conveyances of lands, in any other state or territory of the United States made in the form prescribed for executing and acknowledging deeds within this state, may be acknowledged before any person authorized to take acknowledgments of deeds by the laws of the state or territory wherein it is taken, or before any commissioner appointed by the governor of this state for such purpose: Ballinger's Codes, sec. 4527. Wyoming: Any officer authorized to take acknowledgments at the place where it is taken. In all such cases the officer must certify thnt the "signature appended to the acknowledgment is genuine": Rev. Stats., sees. 2743, 2744. But they must be executed according to the laws of Wyoming, and when "executed according to the laws of that state, and acknowledged before a clerk of a court of record, county clerk or a commission .... has the same effect as if executed an-l acknowledged in this state: Id., sec. 2745. Query, If acknowledged be- fore anv officer except a clerk of a court of record, county clerk or commissioner, do instruments have the same effect as if executed in Wyoming? Without the United States, before either a minister, com- missioner, or charge d'affaires of the United States ; or a consul, vice-consul, or consular agent of the United States, resident in the country where the proof or acknowledgment is made; or a 20 New Book of Forms. judge of a court of record of the country where the proof or ac- knowledgment is made ; or commissioners, appointed for such purposes by the governor of the state ; or a notary public. NOTE.— CaHfornia, C. C, sec. 1183. Alaska: Deeds executed in a foreign country, executed according to its laws before a notary public therein, any minister plenipotentiary, minister extraordinary, minister resident, charge d'affaires, commis- sioner or consul of the United States appointed to reside therein. The officer must certify it under his hand, and the notary public must affix his seal of office to his certificate: Codes, pt. 5, c. 11, sec. 85, p. 371. Arizona: A minister, commissioner, or charg4 d'affaires of the United States, resident and accredited in the country where the acknowledg- ment is made. A consul general, consul, vice-consul, commercial agent, viee-commercial agent, deputy consul or consular agent of the United States resident in the country where the acknowledgment is made, a notary public: C. C, par. 742. Colorado: Before a court of record of any republic, kingdom, empire, state, principality, or province having a seal, it being certified by a judge or justice of such court to have been made before such court, under the seal of the court; before the mayor, or other chief officer of any city or town having a seal, certified under said seal, before a consul of the United States, and his consulate seal: Mill's Stats., sec. 439. Idaho, C. C, sec. 2422, and Montana, C. C, sec. 1603, the same as in California. Nevada: By some judge or clerk of any court of any stata, kingdom or empire having a seal, or by a notary public therein, or by a minister, commissioner, or consul of the United States appointed to reside therein: Comp. Laws, sec. 2642. Held, that the words "consul of the United States" includes "vice-consul general": Evans v. Lee, 11 Nev. 194. In New Mexico, "before the court or clerk of any state, kingdom or empire having a seal, or by the magistrate, or supreme power of any city, who may have a seal: Comp. Laws, sec. 3944; before any notary public, having a seal, a consul or vice-consul of the United States, and before a judge of any court of record having a seal. In such case the signatures of the judge and his official character "must be certified in the usual manner": Comp. Laws, sec. 3970. North Dakota, C. C, sec. 3576, the same as in California, except com- missioners appointed for that purpose are omitted. South Dakota, C. C, sec. 973, the same as in California. Utah: By a judge or clerk of any state, kingdom or empire having a seal, or any notary public therein, any ambassador, minister, commis- sioner, or consul of the United States appointed to reside therein: Rev. Stats., sec. 1985. Washington: Before any minister plenipotentiary, secretary of lega- tion, charge d'affaires, consul general, consul, vice-consul, consular agent or commercial agent appointed by the government of the United States, a notary public, the proper officer of any court, the mayor or chief magistrate of a town, city or other municipal corporation: Ballinger's Codes, sec. 4532. The officer taking it shall certify the same by a certifi- cate written on or annexed to said instrument, which certificate shall be under his official seal, if any he has, and such certificate shall recite in substance that the instrument was acknowledged by the person or persons whose name or names arc signed thereto as grantor or principal before him as such officer, with the date of such acknowledgment: Id., g€C. 4531. Wyoming: To be executed according to the laws of this state before a counsel general, consul, or vice-consul of the United States — all under their teals of office: Rev. Stats., sec. 2746. Acknowledgment and Proof of Instrument. 21 Acknowledgment by Deputy. — When any of the officers mentioned in the four preceding sections (1180, 1181, 1182, 1183) are authorized by law to appoint a deputy, the acknowledgment oj proof may be taken by the deputy in the name of the principal. NOTE.— California, C. C, sec. 11S9. Idaho, C. C, sec. 2423. Colo- rado: If executed in the state, a recorder's deputy clerk may: Mill's Stats., sec. 439. Montana, C. C, sec. 1604. North Dakota, C. C, sec 3587. South Dakota, C. C, sec. 973. Utah, Rev. Stats., sec. 1987. Wash- ington: A deputy county auditor may: BalUnger's Codes, see, 401 j and sis to others, the same as in California. Married Woman's Acknowledgment. — A conveyance by a married woman has the same effect as if she were unmarried, and may be acknowledged in the same manner: C. C, sec. 1187. NOTE.— California, C. C, sec. 1187. Alaska: If a married woman residing in the district joins with her husband in a conveyance of property in the district, she must acknowl- edge "that she executed such deed freely and voluntarily." If she does not reside in the district and joins in the deed conveying land in the district, the conveyance has the same effect as if she were sole, and she makes the acknowledgment as if she were sole: Codes, pt. 5, c 11, sees. 85, 87, p. 371. Arizona : As to married women, see Form of Acknowledgment for Ari- Eona, post. Idaho: As to married women, see Forms. Montana, C. C, sec. 1606, the same as in California. Nevada: See Forms, post. New Mexico: See Forms, post. North Dakota, C. C, sec. 3578; see Forms, post. South Dakota, C. C, sec. 975; see Forms, post. Utah: Rev. Stats., sees. 1188, 1200, the same as in California; see Forms, post. Washington: See Forms, post. Wyoming: She may by deed or mortgage convey her real estate in like manner as if she were unmarried: Rev. Stats., sec. 2732. Under the chapter relating to the execution of conveyances, it is provided that when she does not reside in the state and joins her husband in the deed, it has the same eflPect as if she were sole and the acknowledgment or proof, etc., may be made as if she were sole: Id., sec. 2747. The same provision ia found in the Alaska statutes: See the only Statutory Form, post. Acknowledgment not to be Taken, When, — An acknowledg- ment must not be taken, unless the officer knows, or has satisfac- tory evidence, on the oath or affirmation of a credible witness, that the person making it is the individual who is described in and who executed the instrument ; or, if executed by a corporation, that the person making it is the president or secretary' of such corporation (see note to Form No. 2 for amendment to section 1 185 of session of 1905) : C. C, sec. 1185. NOTE.— California, C. C, sec. 1185. Alaska: Codes, pt. 5, c 11, sec. 88, p. 371. Arizona: In meaning the same as in California. Colorado: No acknowledgment shall be taken unless tlie person making it shall be personally known to the officer to be the identical person he represents himself to be, or shall be proved to be such by at least on© 22 New Book o^ Forms. credible person known to snch officer; but it is not necessary to state that fact in the certificate except when the certificate is attached to conveyance or mortgage of a homestead. In such ease the certificate shall contain such additional words: Mill's Stats., sec. 443. Idaho, C. C, sec. 2424, Montana, C. C, sec. 1605, and Nevada, Comp. Laws, sec 2645, the same as in California. North Dakota, C. C, sec. 3577, the same, except it must be known to the officers that a person acknowledging for a corporation was au- thorized by the corporation by resolution of its board of directors to make it. South Dakota, C. C, sec. 974, the same as in California. Utah. Rev. Stats., sec. ]9S8, the same as in California, except as to corporations; as to them, see Forms, post. Duty of Officer. — An officer taking the acknowledgment of an instrument must indorse thereon, or attach thereto a certifi- cate substantially in the forms prescribed by law. NOTE. — California, C. C, sec. 1188. No statutory forms. See Forma of Acknowledgment, post. Arizona: The same as in California; C. C, par. 745; see Forms, post. Montana, C. C, see. 1608, the same as in California. Nevada: See Forms, post. New Mexico: See Forms, post. North Dakota, C. C, sec. 3584. South Dakota, C. C, sec. 981; and Utah, Eev. Stats., sec. 1989, the same as in California. See Forms, post. Authentication of Certificates. — Officers taking and certify- ing acknowledgments or proof of instruments for record, must authenticate them by their signatures, followed by the names of their offices ; also, their seals of office, if by the laws of the state or country where it is taken, or by authority of which they are acting, they are required to have official seals. NOTE.— California: Sections 1180, 1193, 1194, Civil Code, refer to two classes of dissimilar instruments; one is an "Acknowledgment," and the other the "Proof of an Instrument." Commencing with section 1195 to and including section 1201 the Civil Code refers entirely to the proof of instruments in writing. The difference between the two is of the great- est importance. Any person who has intelligence sufficient to write his name, and enough mechanical skill to enable him to scratch a name into a printed blank certificate, and vitality enough to lick a gummed paper disk, and is not habitually too unsteady to distinguish between a pile of seals in his custody and a brass paper weight, with sight suffi- ciemtly acute that he may press his seal of office reasonably near the aforesaid disk not to be altogether off the instrument he is doing his best to authenticate, and has sufficient political influence in his ward t« secure his appointment, may exercise the office of justice of the peace, deputy clerk or deputy recorder, or notary public under the laws of California, and take acknowledgment of written instruments with credit to himself and the influence that is responsible for his appoint- ment; but he would be altogether lost should he attempt to take proof 01 a written instrument under sections 1195, 1196, 1197, 1198, 1199, 1200, of the California Civil Code in manner and form as provided by law. That cla.ss of judicial work belongs to judges learned in the law. It is worthy of notice that section 1193 makes a difference between the mannpr of authenticating acknowledgments and making proofs of instruments. If the instrument is "for record," the officer must affix his signature and seal of office; if it is not to be recorded, the officer's signature appears to be sufficient; but when this is read in connection ACKNOWIvEDGMENT AND PrOOF OF INSTRUMENT. 23 with section 1948 of the Code of Civil Procedure allowing every private writing to be acknowledged or proved, and when acknowledged or proved to be prima facie evidence of their execution; and when the sections above referred to are read in connection with the first line of section 794, and subdivision 7, where it is said that he must keep an ofEcial seal, and with it must authenticate his official acts, it is evident that he must sign and seal all acknowledgments and proofs of instru- ments officially certified by him. Alaska: See Forms. Arizona: The general form given in paragraphs 744 and 746 of the Civil Code appearing in Forms of Acknowledgments, post, contemplates that the identity of the person acknowledging an instrument may be proved by the oath of a witness; but the writer of this note is unable to find any statute governing the matter. Idaho, C. C, sec. 2431, Montana, C. C, sec. 1613, and Nevada, Comp. Laws, sees. 2643, 2644, the same as in California. North Dakota, C. C, see. 3568, the same as in California, with a pro- vision that judges and clerks of courts of record must affix the seals of their courts, and mayors of cities the city seals. Also under the act of 1901, Laws, p. 159, immediately following his signature a notary must write: "My commission expires , 19 . " He may have the date of the expiration of his commission engraved on his seal. South Dakota, C. C, sec 981, the same as in California, with the ad- dition: "Mayors of cities must affix the city seal." Utah: The officer shall grant a certificate and indorse or annex it to the instrument. If by a judge or clerk, then his hand and the seal of the court. By any other, under his hand and official seal: Rev. Stats., B€C 1987. Wyoming, Rev. Stats., sees. 2741-2746. A notary public, justice of the peace, and commissioner of deeds for the state must add to his cer- tificate the date on which his commission expires: Id., sec 2753. Justice of the Peace, Taking. — 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 accom- panied by a certificate under seal of the clerk of the county in which the justice resides, that such justice, at the time of takin;^ such proof or acknowledgment, was authorized to take the same, and that the clerk is acquainted with his handwriting, and believes that the signature to the original certificate is genuine. NOTE.— California. C. C, sec. 1194; Alaska, Codes, pt. 5. c 11, sees. 73-118. In Arizona it does not appear to be necessary. Idaho, C. C, sec. 2432. Montana, C. C, sec 1614, Nevada, Comp. Laws, sec. 2642, North Dakota. C. C, sec 3587, and South Dakota, C. C^ sec. 981, the same as in California. Utah: A justice of the peace is forbidden to taJce acknowledgments of instruments required to be recorded: Rev. Stats., sec. 980. Washington: Unless the acknowledgment be taken before a commis- sioner appointed by the governor or by the clerk of the court of record of said state or territory, or by a notary public or other officer having a seal of office, then such deed shall have attached thereto a certificate of the clerk of the court of record, under the seal of said county or district, or a certificate of any other proper certifying officer of said district or county, that the person whose name is subscribed to the certificate was at the date thereof such officer as he therein represents himself to be, that he is authorized by law to take it, and that he verily believes the signature of the person subscribed is genuine: Ballinger's Codes, sec. 4520. 24 New Book of Forms. Wyoming: Such certificate is Becessary when an acknowledgment is taken by any officer, who has no seal, irresjDective of his residence: Rev. Stats., sec. 2744. Proof of Execution. — Proof of the execution of an instru- ment, when not acknowledged, may be made either: i. By the party executing it, or either of them ; or 2. By a subscribing wit- ness, or 3. By other witnesses, in cases mentioned in section 1198. NOTE. — California, C. C, sec. 1195; Alaska Codes, pt. 5, c. 11, sees. 73- 118; Idaho, C. C, sec. 2433; and Montana, C. C, sec. 1615, the same as in California. Nevada: The statutory provisions are in substance the same as in California as to the manner and effect of proof of execution when the execution of an instrument is witnessed but not acknowledged: Comp. Laws, sees. 2641-2657. New Mexico: The only provision is as follows: The certificate must express the fact that the acknowledgment was made the same as in the forms of acknowledgment, post; and continues, or that the person exe- cuting the instrument "was proved to be such person by the testimony of at least two reliable witnesses": Comp. Laws, sec 3949. North Dakota, C. C, sec. 3579, the same as in California. Oregon: Proof may be made of any conveyance, and by a subscribing witness. He must state his place of residence, and that he knew the person described in snd who executed such conveyance; and such proof shall not be taken unless the officer is personally acquainted with the subscribing witness, or has satisfactory evidence that he is the same person who was a subscribing witness to such instrument: Codes and Stats., sec. 5350. The oflScer must indorse the certificate, signed by him- self, on the certificate, and in it shall set forth the matters required to be done, known, or proved, and the names of the witnesses examined be- fore him. and their places of residence, and the substance of their evi- dence: Id., sec. 5354. When any grantor is dead, or out of the state, or refuses to ackiiO'«fl- edge his deed, and all the subscribing witnesses are dead, or reside out of the state, the proof may be made before the circuit court, or any judge thereof, by proving the handwriting of the grantor and of any subscribing witness: Id., sec. 5351. It has been held that the certificate must state that the witness was sworn: Mclntire v. Kamm, 12 Or. 253, 7 Pac. 27. Witness may be compelled to attend the same as in Califor- nia: Id., Bees. 5352, 5353. For certificate of proof, see Forms. South Dakota, C. C, sec. 976. Utah, Rev. Stats., sees. 1191, 1198. A special form to be used in such proceedings is prescribed: Id., sec. 1994:. See Forms, post. Proof by Subscribing Witness. — If by a subscribing witness, he must be personally known to the officer to be the person whose name is subscribed to the instrument as a witness, or must be proved to be such by the oath of a credible witness. The sub- scribing witness must prove that the person whose name is sub- scribed to the instrument as a party is the person described in it, and that such person executed it, and that the witness subscribed his name thereto as a witness. NOTE.— California, C. C, sees. 1196, 1197; Alaska Codes, pt. 5, c. 11, sees. 73-118a, 372; Idaho, C. C, sees. 2434, 2435, Montana, C. C^ sees. 1616, 1617, North Dakota, C. C, sec 3580, and South Dakota, C. C, eec 977, the same as in California, Acknowledgment and Proof o? Instrument. 25 Proof of Instruments Established. — Handwriting. — The execution of an instrument may be estabHshed by a proof of the handwriting of the party and of a subscribing witness in the fol- lowing cases: i. When the parties and all the subscribing wit- nesses are dead ; or 2. When the parties and all the subscribing witnesses are nonresidents of the state ; or 3. When the place of their residence is unknown to the party desiring the proof, and cannot be ascertained by the exercise of due diligence ; or 4. When the subscribing witness conceals himself, or cannot be found by the officer by the exercise of due diligence in attempting to serve the subpoena or attachment ; or 5. In case of the continued failure or refusal of the witness to testify, for the space of one hour after his appearance. MOTE. — California, C. C, sec 1198; Alaska Codes, pt. 5, c. 11, sees. 73-118,- Idaho, C, C, sec. 2436, Montana, C. C, sec. 1618, North Dakota, C, C, sec. 2581, and Soath Dakota, C. C, sec. 978, the same as in Cali- fornia. < Evidence — What It Must Prove. — The evidence taken un- der the preceding section must satisfactorily prove to the officer the following facts: I. The existence of one or more of the con- ditions mentioned therein ; and 2. That the witness testifying knew the person whose name purports to be subscribed to the instru- ment as a party, and is well acquainted with his signature, and that it is genuine; and 3. That the witness testifying personally knew the person who subscribed the instrument as a witness, and is well acquainted with his signature, and that it is genuine , and 4. The place of residence of the witness. NOTE. — California, C. C, sec 1199; Alaska Codes, pt. 5, c 11, sees. 73- 118; Idaho, C. C, sec 2437, Montana, C. C, sec. 1619, North Dakota, C. C, sec 3582, and South Dakota, C. C, sec. 979, the same as in California. Certificate of Proof — What to Contain. — An officer taking proof of the execution of any instrument must, in h>s ccrtificite indorsed thereon or attached thereto, set forth all the matters re- quired by law to be done or known by him, or proved before him on the proceeding, together with the names of all the witnesses examined before him, their places of residence respectively, and the substance of their testimony. NOTE. — California, C. C, sec 1200; Alaska Codes, pt 5, c 11, sees. 73-118. Colorado: When an instrnmcnt in writing is not acknowledged accord- ing to law at the time of its execution, it may, at any other time, be acknowledged by the maker, or proof may be made of its execution be- fore any officer authorized to take acknowledgment of deeds. If the officer does not know of his own knowledge the person offering to prove the execution, then he must ascertain from the testimony of at least one competent and credible witness, sworn and examined by him, that 26 New Book of Forms. such person vns a subscribing witness. The officer must examine the ■n-itness under oath and reduce his testimony to writing. The witness must sign his testimony. The statute then continues, providing that a certificate of proof shall be issued, and what it shall contain, but a form is not given, A form will be found among other forms, post, containing all the essentials of the statute: Mill's Stats., sec. 444. Idaho, C. C, sec. 2438; Montana, C. C, sec. 1620; North Dakota, C. C, see. 35S3; a form is also provided for a deputy sheriff who may execute a conveyance in the name of the sheriff. South Dakota, C. C, sec. 980, the same as in California, except as to a deputy sheriff. Authority of Officers Taking Proof. — Officers authorized to take the proof of instruments are authorized in such proceed- ings: I. To administer oaths or affirmations, as prescribed in sec- tion 2093, Code of Civil Procedure ; 2. To employ and swear in- terpreters ; 3. To issue subpoena, as prescribed in section 1986, Code of Civil Procedure; 4. To punish for contempt, as pre- scribed in sections 1991, 1993, 1994, Code of Civil Procedure. The civil damages and forfeiture to the party aggrieved are prescribed in section 1992, Code of Civil Procedure. >^OTE. — California, C. C, sec. 1201; Alaska Codes, pt. 5, c 11, sees. 73-118; Idaho. C. C, sec. 2439; Montana, C. C, sec. 1621, North Dakota, C. C.,'sec. 3591, and South Dakota, C. C., sec 983, the same as in Cali- fornia^ Correcting Certificates. — When the acknowledgment or proof of the exeaition of an instrument is properly made, but defectively certified, any party interested may have an action to obtain a judgment correcting the certificate. NOTE. — California, C. C, sec. 1201; Alaska Codes, pt. 5, c. 11, sees. 73-118; Idaho, C. C, sec. 2440, Montana, C. C, sec. 1622, North Dakota, C. C, sec. 3588, and South Dakota, C. C, sec. 982, the same as in Cali- fornia. Proof of Instruments by Actions. — Any person interested under an instrument entitled to be proved for record may institute an action to obtain a judgment proving such instrument. A cer- tified copy of the judgment in a proceeding instituted under either of the two preceding sections, showing the proof of the instru- ment, and attached thereto, entitles such instrument to record, with like effect as if acknowledged. NOTE.— California, C. C, sees. 1203-1205; Alaska Codes, pt. 5, c. 11, sees. 73-118; Idaho, C. C, sees. 2441, 2442, Montana, C. C, sees. 1623, 1624, North Dakota, C. C, sees. 3589, 3590, and South Dakota, C. C, sec 982 (one section embraces the two above), the same as in California. ACKNOWI^EDCMENT AND pROOF OF INSTRUMENT. 27 No. 6. — Acknowledgment — Notary Public — Wife, State of California, County of Butte, — ss. On this second day of May, in the year one thousand nine hun- dred and Hvc, before me, W. B., a notary public in and for the said Butte county, personally appeared M C, wife of G. C, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same. No. 7. — Acknowledgment — Notary Public — Husband and Wife, State of California, County of San Mateo, — ss. On this second day of May, in the year one thousand nine hun- dred and five, before me, H. W., notary public in and for the said San Mateo county, state of California, personally appeared /. A. and M. A., his ivife, known to me to be the persons whose names are subscribed to the within instrument, and they and each of them acknowledged to me that they and each of them, re- spectively, executed the same. No. 8. — ^Acknowledgment — Notary Public — Husband and Wife — Proven, State of California, County of Sonoma, — ss. On this second day of July, in the year one thousand nine hun- dred and tive, before me, S. D., a notary public in and for the count}^ of Sonoma, personally appeared /. 6'. and S. S., his unfe, satisfactorily proved to me to be husband and wife, and the per- sons described in and who executed the within instrument, by the oath of G C, a competent and credible witness for that pur- pose, by me duly sworn, and the said /. S. and S. S., his zvife, each of them, acknowledged to me that they respectively exe- cuted the same. NOTE.— California, C. C, sec 1189. No. 9. — Acknowledgment — Notary Public — Subscribing Wit- ness. State of California, County of Sonoma, — ss. On this second day of May, in the year one thousand nine hun- dred and five, before me, P. IV., a notary public in and for the 28 New Book of Forms. said county, personally appeared /. M., known to me to be the same person whose name is subscribed to the within instrument, as a witness thereto, who, being by me duly sworn, deposed and said, that he resides in the town of Sonoma; that he was present and saw /. F. (personally known to him to be the person de- scribed in and who executed the said instrument, as party thereto) , sign, seal and deliver the same; and that the said /. F. duly ac- knowledged, in the presence of said affiant, that he executed the same, and that he, the said affiant, thereupon, and at his request, subscribed his name as a witness thereto, NOTE.— California, C. C, sec 1196. No. ID, — Acknowledgment — Notary Public — Party Proven. State of California, County of Sierra, — ss. On this second day of May, in the year one thousand nine hun- dred and five, before me, F. J., a notary public in and for the said county of Sierra, personally appeared W. W., satisfactorily proved to me to be the person described in and who executed the within instrument, by the oath of L. S., a competent and credible witness for that purpose, by me duly sworn, and he, the said W. W-, acknowledged to me that he executed the same. NOTE. — California, C. C, sec. 1189. No. II. — Acknowledgment — County Clerk — General. State of California, County of Sierra, — ss. On this second day of June, in the year one thousand nine hundred and Hve, before me, W. A., county clerk of the county of Sierra, personally appeared W. H., known to me to be the per- son whose name is subscribed to the within instrument, and ac- knowledged to me that he executed the same. NOTE.— California, C. C, sec 1189, No. 12. — Acknowledgment — County Clerk — Attorney in Fact. State of California, County of Santa Clara, — ss. On this second day of May, in the year one thousand nine hun- dred and iive, before me, /. S., county clerk, and ex-officio clerk of the superior court of the said county of Santa Clara, person- ally appeared / T., known to me to be the person whose name is Acknowledgment and Proof of Instrument. 29 subscribed to the within instrument, as the attorney in fact of IV. S., and the said /. T., duly acknowledged to me that he sub- scribed the name of IV. S. thereto as principal, and his own name as attorney in fact. NOTE.— California, C. C, see. 1191. No. 13. — Acknowledgment — County Clerk — Witness. State of California, County of San Mateo, — ss. On this second day of March, in the year one thousand nine hundred and iive, before me, H. W., county clerk of said San Mateo county, personally appeared W. W., personally known to me to be the person whose name is subscribed to the within in- strument, as a witness thereto, who, being by me duly sworn, de- posed and said, that he resides in Redzvood City, county of San Mateo, state of California; that he was present and saw A.. T. (known to him to be the person described in and who executed the said instrument) sign, seal, and deliver the same; and that the said A. T. acknowledged in the presence of said affiant that he executed the same, and that he, the said afBant, at his request, sub- scribed his name as a witness thereto. NOTE.— California, C. C, sec. 1196. No. 14. — Acknowledgment — County Recorder — General. State of California, County of Santa Barbara, — ss. On this second day of March, in the year one thousand nine hundred and five, before me, A. D., county recorder in and for the said Santa Barbara county, personally appeared R. R., known to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same, NOTE.— California, C. C, sec. 1189. No. 15. — Acknowledgment — County Recorder — Witness. State of California, County of San Mateo, — ss. On this sixteenth day of May, in the year one thousand nine hundred and fiz'C, before me, W. W., county recorder in and for the said San Mateo county, personally appeared H. N., known to me to be the person whose name is subscribed to the annexed in- strument, as a witness thereto, who, being by me duly sworn, de- 30 New Book op Forms. posed and said, that he resides in said county of San Mateo; that he was present and saw C. H. (personally known to him to be the person described in and who executed the said within instrument as a party thereto) sign, seal, and deliver the same; and that the said C. H. acknowledged, in the presence of said affiant, that she executed the same, and that he, said affiant, at her request, sub- scribed his name as a witness thereto. NOTE.— California, C. C, sec. 1196. No. 1 6. — Acknowledgment — County Recorder — ^Attorney in Fact. State of California, Countv of Madera, — ss. On this second day of July, in the year one thousand nine hun- dred and Hre, before me, T Y., county recorder in and for the said county of Madera, personally appeared /. H., known to me to be the person whose name is subscribed to the within in- strument as the attorney in fact of G. F.; and the said /. H. ac- knowledged to me that he subscribed the name of G. P. thereto as principal, and his own name as attorney in fact. NOTE.— California, C. C, sec. 1191. No. 17. — Acknowledgment — Justice of the Peace — Husband and Wife. State of California, County of San Mateo, — ss. On this second day of May, in the year one thousand nine hun- dred and Hve, before me, G. W., a justice of the peace in and for the county of San Mateo, personally appeared before me at my office in the county of San Mateo, California, IV. C, and R. C, his ii'ife, known to me to be the persons whose names are sub- scribed to the within instrument, who each of them acknowledged to me that they respectively executed the same. In witness whereof, T have hereunto set my hand and affixed my private seal at my office (having no seal of office), the day and year in this certificate first above written. NOTE.— California, C. C, sec. 1189. No. 18. — Acknowledgment — Justice of the Peace — General. State of California, County of San Diego, — ss. On this second day of May, in the year one thousand nine hun- dred and -five, before me, R. P., a justice of the peace in and for Acknowledgment and Proof of Ixstrument. 31 said county of San Diego, personally appeared P. J., known to me to be the person whose name is subscribed to the said within instrument, who acknowledged to me that he executed the same. In witness whereof, etc. NOTE.— California, C. C, sec. 1189. No. 19. — Acknowledgment — Justice of the Peace — Witness. State of California, County of Sierra, — ss. On this second day of May, in the year one thousand nine hun- dred and five, before me, G. W., a justice of the peace in and for the county of Sierra, personally appeared before me in my office in the county of Sierra, state of California, W. W., known to me to be the person whose name is subscribed to the within instrument, as a witness thereto, who, being by me duly sworn, deposed and said, that he resides in Redwood City, county of San Mateo; that he was present and saw /. L. (personally known to him to be the same person described in and who executed the said instrument), sign, seal, and deliver the same, and that the said /. L. duly acknowledged, in the presence of said affiant, that he executed the same, and that he, the said affiant, at his request, thereupon subscribed his name as a witness thereto. NOTE.— California, C. C, sec. 1196. No. 20. — Acknowledgment — Justice of the Peace — Attorney in Fact, State of California, County of Sliasta, — ss. On this second day of June, in the year one thousand nine hun- dred and five, before me, H. T., a justice of the peace in and for the county of Shasta, personally appeared before me in my office in the county of Sierra, state of California, W. R., known to me to be the person whose name is subscribed to the within instru- ment as the attorney in fact of /. H., and the said W. R. acknowl- edged to me that he subscribed the name of /. H. thereto as prin- cipal and his own name as attorney in fact. NOTE.— California, C. C, sec. 1191. No. 21. — Proof of Execution of an Instrument When All the Parties and Subscribing Witnesses are Dead. State of California, City and County of San Francisco, — ss. On this, the first day of March, in the year 7005. before me, /. M., a notary public, in and for the city and county of San 32 New Book of Forms. Francisco, personally appeared A. B., known to be a credible witness, and after being by me sworn in the manner and form by law required, I exhibited to him an instrument in writing, to wit, the grant of land, to which this certificate is attached, upon which is written the signature of D. B., grantor and G. H., as subscribing witness to it. After being sworn, the said A. B. tes- tified in substance that said instrtmient has never been acknowl- edged ; that he knew personally D. E., the grantor and the sub- scribing witness G. H., at the date of said instrument. That the parties and all the subscribing witnesses to said instrument are dead; that he then knew, and now knows, the handwriting of the said grantor and subscribing witness. That the signature of the grantor D. B. is genuine, and the signature of G. H., the only subscribing witness, is genuine. That he, the said witness, re- sides in said city and county. Witness my hand, etc NOTE. — California, C. C, sec. 1198. No. 22. — Proof of Execution of Instrument — Handwriting of Maker and Subscribing Witness — Parlies Nonresident. State of California, City and County of San Francisco, — ss. On this, the first day of March, in the year ipo^, before me, 7. M., a notary public in and for the city and county of San Fran- cisco, personally appeared A. L., known to me to be the person whose name is subscribed to the instrument to which this writing is annexed as a witness to the genuineness of the signature of the grantor, S. S., and the genuineness of the signature of M. A., the subscribing witness to said instrument. The said A. L. was sworn by me in the manner and form required by law and the substance of his testimony was as follows : That he personally knew S. S., the grantor, and M. A., the subscribing witness, and also the grontor in said instrument named at the time said instru- ment was executed, to wit, at the city and county of San Fran- cisco on the 3d day of June in the year ipo2; that since the ex- ecution of said instrument both the grantor and grantee have be- come nonresidents of the state of California, to wit, they reside in the city of Rome, in the Kingdom of Italy; that he is well ac- quainted with the signature of the grantor and the said subscrib- ing witness, and the signature of the grantor and the signature of the subscribing witness, and the signature of said grantor to the said instrument, and also the signature of the subscribing wit- ness are genuine. That he, said A. L., is a resident of Sausalito, county of Marin, state of California, and that he subscribed his name to said instrument as a witness to the genuineness of said grantor and said subscribing witness, respectively. NOTE. — California, C. C, sec. 1198. Acknowledgment and Proof of Instrument. 33 No. 23. — Proof of Execution of an Instrument When the Place of the Residence of the Parties is Unknown. [The same as in No. 21 down to and inckiding the words, "Af- ter being sworn, the said A. B. testified in substance :"\ That he personally knew D. B., the grantor, and the subscribing witness, G. H., at the date of said instrument ; that the place of residence of the parties and all the subscribing witnesses to said instrument is unknown to the said A. B.; that he, the said A. B., is the grantee named in said instrument ; that said instrument was never acknowledged, and he desires to have it proved so that it may be recorded ; and he has exercised due diligence to ascertain the residences of the parties and the subscribing witnesses by making inquiry at their last known places of residence, by advertising in three daily papers published at their last knouni residences for one week, and by personal inquiry among their friends, family and acquaintances; and he cannot ascertain the place of residence of all or any of said parties." Acknowledgments — Alaska Territory. — In Alaska, deeds must be executed in the presence of two subscribing witnesses. It may be acknowledged before any officer authorized to take ac- knowledgments in any state or territory of the United States, and according to the laws of such places. When a married woman residing in Alaska joins her husband in executing a deed, she must acknowledge that she executed the deed freely and vol- untarily. NOTE. — Alaska, Codes, pt. 5, c. 11, sees. 73-118. Therefore, as to in- struments executed in any other state or territory, they may be acknowl- edged (not proved) the same as in California; but if the instrument is executed by a husband and wife, the words "freely and voluntarily" must be added to the California form. Acknowledgments — Arizona Territory. — A married woman of the age of seventeen, or above, may execute a deed of her sep- arate property without being joined by her husband ; and when she is required by law to join with her husband in a conveyance, she need not be examined separate and apart from him. Ac- knowledgments taken elsewhere must conform to the laws of the territory. NOTE.— Arizona, C. C, pars. 721-746. Therefore, all California forms are applicable to Arizona by inserting the words: "He or she," "Exe- cuted the same for the purpose and corusidcration therein expressed." No. 24. — General Form — Arizona. Territory of Arizona, County of Maricopa, — ss. Before me, A. B., a notarv' public, in and for the county of Maricopa, territory of Arizona, on this day, personally appeared New Forms — 3 34 New Book of Forms. C. D., known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he exe- cuted the same for the purpose and consideration therein ex- pressed. Given under my hand and seal of office this ^d day of Jan., A. D. 190/. My commission expires the jo? day of June, A, D. 1(908. NOTE.— Arizona, C. C, pars. 721-746. Acknowledgments — Colorado. — The person acknowledging must be personally known to the officer to be the identical person he represents himself to be, or shall be proved to be such by at least one credible person known to the officer ; but it is not neces- sary to state such fact in his certificate except when it is intended to convey or mortgage a homestead. In such case the acknowl- edgment shall contain the additional words required by law. As to instruments executed in a foreign country, they may be ac- knowledged in the form used in such country. Ordinarily, the word "foreign" followed by state or place would mean the United States, but the word "country" following "foreign" and the phrasing of the statute clearly means not in the United States. NOTE. — Colorado, Mill's Stats., sees. 443-450. Therefore, all Califor- nia forms except a married woman's, when a homestead is involved, are applicable to Colorado except the words "to be her act and deed for the uses specified therein." No. 25. — General Form — Colorado. State of Colorado, County of Washington, — ss. A. B. appeared before me this jc? day of June, ipo6, in person and acknowledged the foregoing instrument to be his act and deed for the uses specified therein. [After the notary's signature must come the date of the expiration of his commission.] NOTE. — Colorado, Mill's Stats., sec. 443. See "Seal of Notary," post. No. 26 — Married Woman — Homestead Involved. State of Colorado, County of Arapahoe, — ss. On this first day of June, A. D, ipoy, before me, E. B., a notary public in and for the county of Arapahoe, state of Colorado, p>er- sonally appeared R. S., wife of /. S., known to me to be the per- son whose name is subscribed to the within instrument, described as a married woman ; and upon examination by me privately and apart from her husband, signed said instrument, after having the same by me fully explained to her, and after fully apprising her Acknowledgment and Proof of Instrument. 35 of her rights and the effect of signing said instrument, she, the said R. S., acknowledged said instrument to be her act and deed, and declared that she had willingly signed the same for the pur- poses and consideration therein expressed, and that she did not wish to retract it. NOTE.— MiU's Stats., sec. 2137. No. 27. — Chattel Mortgage. State of Colorado, County of Washington, — ss. This mortgage was acknowledged by A. B., this jrf day of June, A. D. igo/. NOTE.— Mill's stats., sec. 386. No. 28. — Proof of the Execution of an Instrument by Subscrib- ing Witness — Colorado (Acknowledgment to Witness). [The same as in preceding forms, dozvn to and including the matter contained in the first brackets, then continue :] "That said subscribing witness was then lawfully sworn and examined by me; and his testimony was by me then and there reduced to writing, and was by said subscribing witness subscribed in my presence, and it appears from said testimony that said subscrib- ing witness did not see the said A. L. sign, seal and deliver said instrument to M. M., but the said A. L. showed said instrument to said subscribing witness and said that he signed and sealed it and that it was his free and voluntary act and deed, and that said witness subscribed said instrument in attestation thereof in the presence and with the consent of the person executing the ♦same, to wit, the said L. M. NOTE.— Colorado, MiU's Stats., sec. 444. No. 29. — Proof of Execution of Instrument by Subscribing Witness — Colorado (Witness Proved to be a Subscribing Witness). On this jrf day of June, A. D. igoQ, before me, A. B., a notary public in and for the county of Delta, state of Colorado, person- ally appeared, C. D., who has proved to me by the testimony of E, F. to be a subscribing witness to the instrument to which this certificate is attached [Describe the instrument by dates and parties, and state, briefly, to what it relates and conclude as in preceding form.] NOTE.— Colorado, Mill's Stats., sec. 444. ^6 New Book of Forms, No. 30. — Proof of the Execution of Instrument by Subscribing Witness (Witness Known to Officer). State of Colorado, County of Delta, — ss. On this jrf day of June, A. D. IQ06, before me, A. B., a notary public, in and for the county oi Delta, state of Colorado, person- ally appeared C. D., personally known to me to be a subscribing witness to the instrument to which this certificate is attached, to wit : [Describe the instrument by dates and parties and state briefly to what it relates.] That said subscribing witness was lawfully sworn and examined by me, and his testimony was, by me, then and there reduced to writing, and was by said sub- scribing witness subscribed in my presence, and it appears from said testimony that said subscribing witness saw the person whose name is subscribed to said instrument, to wat, A. L., sign, seal and deliver the same to M. M., and said witness subscribed the said instrument in attestation thereof, in the presence and with the consent of the person so executing the same, to wit, the said A. L. (My commission expires on the jrf day of May, iQoy.) NOTE,— Colorado, Mill's Stats., sec 444. No. 31. — Acknowledgments — Form — Idaho. [All the California forms, except as to married women, are applicable, and all other forms in other places applicable to Cali- fornia and appropriate in Idaho.*] No. 32. — Married Women, State of Idaho, County of Custer, — ss. On this Urst day of June, in the year of igoy, before me, £. B., a notary public in and for the county of Custer, state of Idaho, personally appeared R. S., wife of /. S., known to me (or proved to me on the oath of E. P.), to be the person whose name is sub- scribed 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 contents of the instrument, and she acknowledged to me that she executed the same, and that she does not wish to retract such execution. Acknowledgments — Montana — General Form. — In Montana all acknowledgments are the same as in California, and when taken out of the state must conform to the laws of Montana (Cal- ifornia), NOTE.— Montana, C. C, sees. 1600-1627. *When taken oat of the state they must conform to the lawa of Idaho and California: Idaho, C. C, sees. 2419-2445. Acknowledgment and Proof of Instrument. 37 Acknowledgments — Nevada. — In case the grantor is a non- resident of the state of Nevada, acknowledgments may be exe- cuted according to the laws of the state or territory where the grantor resides : Comp. Laws, sec. 2662. It would seem frr)m section 2662 that a resident of the state of Nevada temporarily out of the state must conform in his acknowledgment to the laws of his state. In that respect, Nevada differs from California, and also as to the acknowledgments of married women. In all other respects by adding to the California form the words "executed the same," the words "freely and voluntarily and for the uses and purposes therein mentioned," all the California forms in Nevada are applicable, but if executed in California, except as to married women, are applicable in Nevada. No. 33. — General Form — Nevada. State of Nevada, County of Story, — ss. On this 3J day of June, A. D., one thousand nine hundred and seven, personally appeared before me /. L., a notary public in and for the said county, A. B., known to me to be the same person described in and who executed the foregoing instrument, who acknowledged to me that he executed the same, freely and voluntarily, and for the uses and purposes therein mentioned. NOTE. — Nevada, Comp. Laws, sec. 2647. When the grantor is unknown to the officer, the following form must be used : No. 34, — Proof of Instruments. [The same as Form No. 33, down to and including the letters "A. B.," following "county"; then say:] "Satisfactorily proved to me to be the person described in and who executed the with- in conveyance, by the oath of C. D., a competent and cred- ible witness, for that purpose by me duly sworn, and he, the said A. B., acknowledged that he executed the same freelv and voluntarily, and for the uses and purposes therein mentioned." NOTE. — Nevada, Comp. Laws, sec. 2648. No. 35. — Married Woman. [When a grantor is a married woman, the following form must be used — the same as in the preceding forms down to and including the words "county of":] "Personally appeared A. B. and his wife, L. B., known to me to be the persons described in and who exeaited the foregoing instrument, who acknowledged to me tliat they each exectUed the same freely and voluntarily. 38 New Book of Forms. and for the uses and purposes therein mentioned, and the said L. B. was by me made acquainted with the contents of said con- veyance, and she acknowledged to me on an examination, apart from and without the hearing of her husband, that she executed the same freely and voluntarily, without fear or compulsion, or undue influence of her said husband, and that she does not wish to retract the execution of the same. NOTE.— Nevada, Comp. Laws, sees. 2661, 2662. No. 36. — By Subscribing Witness. State of Nevada, County of Story, — ss. On this ^d day of June, 1^06, before me, A. h., a notary pub- lic in and for the county of Story, personally appeared C. D., and personally known to me to be the person whose name is subscribed to the annexed instrument as a subscribing witness thereto. That said witness was sworn by me to tell the truth and nothing but the truth about the execution by 0. M., of the said instrument. That said witness testified that he saw O. M. sign his name as grantor to said conveyance at City of Car- son, State of Nevada, on the 2d day of April, A. D. ipo6, and the said O. M. requested him to sign his name as a witness to said execution, and he, said witness, then and there, subscribed his name as such witness in the presence of the said grantor, and he personally testified that he knew said grantor to be the per- son described in and who executed the said instrument, and that he, said grantor, said to him (said witness) that he executed the said instrument freely and voluntarily and for the uses and purposes therein mentioned. NOTE.— Comp. Laws, sees. 2650-2652. Acknowledgments — New Mexico. — The general form is the same as in California, except the one who makes it must be "per- sonally known" and he executes it "as his free act and deed." The same words are^ necessary under a power of attorney. There- fore, with those changes all California forms are applicable except ■when executed by a corporation, or association, or married woman. Acknowledgments executed out of the territory must be the same as in the following forms. A married woman who unites in an instrument with her husband and acknowledges the instrument must be described in it as his wife, but in all other respects it is the same as if she were sole. A release of dower is not necessary. A married woman may give a power of attorney, "but she may make, acknowledge and sign a deed through an attorney." NOTE. — Comp. Laws, sees. 3931-3951. ACKNOWXEDGMENT AND PrOOE OF INSTRUMENT. 39 No. 37. — General Form, Territory of Ne^v Mexico, County of Colfax, — ss. On this jrf day of Jutu;, iop6, before me personally appeared A. B., to me known to be the person described in and who exe- cuted the foregoing- instrument, and acknowledged that he exe- cuted the same as his free act and deed. NOTE. — New Mexico, Comp. Laws, sec. 3944. No. 38. — By Attorney in Fact, Territory of New Mexico, County of Colfax, — ss. On this jrf day of June, logd, before me personally appeared A. B., to me known to be the person who exeaited the fore- going instrument in behalf of C. D., and acknowledged that he executed the same as the free act and deed of C. D. NOTE. — New Mexico, Ck)mp. Laws, sec. 3945. No. 39. — 3y Corporation or Association. Territory of New Mexico, County of Colfax, — ss. On this jrf day of June, i8gy, before me appeared A. B., to me personally known, who, being by me duly sworn, did say that he was the president \or other officer or agent of the corporation or association] of [describijig the corporation or association], and that the seal affixed to said instrument is the corporate seal of said corporation [or association] , and that said instrument was signed and sealed in behalf of said corporation [or association], bv au- thority of its board of directors, or trustees, and said A. B. ac- knowledged said instrument to be the free act and deed of said corporation [or association]. NOTE. — New Mexico, Comp. Laws, see. 3945.' Acknowledgments — North Dakota. — All the forms are the same as in California. Acknowledgments taken out of tlie state must conform to North Dakota forms. NOTE.— North Dakota, C. C, sees. 3563-3593. No. 40. — By Justice of the Peace — Oregon — General. The only statutory forms are those expressly directed to be used by justices of the peace. The idea appears to be that a 40 New Book of Forms. form prescribed for a justice of the peace must necessarily be sufficient when used by all officers exercising the same powers. State of Oregon, County of Cla-ckamas, — ss. Before the undersigned, a justice of the peace for the precinct of , in the county and state aforesaid, personally appeared the within [or above] named A. B. and C. D., his wife* to me known to be the individuals described in and who executed the within [or above] conveyance [or power of attorney, as the case may be] , and the said A. B. acknowledged that he executed the same, and tlie said C. D., being by me examined, separate and apart from her said husband, then and there acknowledged that she executed stich conveyance freely, and without fear and com- pulsion from anyone; this day of , 19 . E. F., Justice of the Peace.t NOTE.— Oregon, Codes and Statutes, vol. 2, p. 787. No. 41. — Ey Justice of the Peace — Attorney in Fact. State of Oregon, County of Clackamas, — ss. Before the undersigned, a justice of the peace for the precinct of , in the county and state aforesaid, appeared the within [or above] named [here insert the name of the principal in the conveyance], by his attorney in fact, within [or above] named C. D., to me known to be the individual described in and who ex- ecuted the within [or above] conveyance for and on behalf of the said [insert the name of the principal], and acknowledged to me that he executed the same, this day of , 19 . E. F., Justice of the Peace. NOTE. — Oregon Codes and Statutes, vol. 1, p. 788. Acknowledgments — South Dakota. — All the forms are the same as in California. They must contain the following : "To be the person described in and who executed the within instrument." In the acknowledgment by an attorney in fact the words are: "Who is described in, and whose name is subscribed." NOTE.— South Dakota, C. C, sees. 970-98.5. *In this form the wife seems to be permitted to retain her maiden name. fThis form has this statutory note: "N. B. — The form of acknowledg- ment by a single person is the same as the above, omitting the words 'relating to the wife' " — doubtless to avoid confusion of mind on the part of inexperienced justices. This and the next following are the only statutory forms of acknowledgment in Oregon. Acknowledgment and Proof of Instrument. 41 Acknowledgments — Utah. — They are the same as in Cali- fornia, except as herein given. When made out of the state tliey must conform to the laws of Utah. NOTE.— Utah Rev. Stats., sees. 1984-1998. No. 42. — General Form, State of Utah, County of Juab, — ss. On the jrf day of June, 1^07, personally appeared before me, A. B., the signer of the above instrument, who duly acknowl- edged to me that he executed the same. NOTE.— Utah Eev. Stats., sec. 1989. No. 43. — Corporation. [The same as an individual, down to and including the letters ''A. B." ; then continue:] "Who being by me duly sworn [or af- tirmed], did say that he is the president [or other officer or agent, as the case may be] of [lujming the corporation], and that said instrument was signed in behalf of said corporation by authority of its by-laws [or by resolution of its board of directors, as the case may be], and the said A. B. acknowledged to me that said corporation executed the same." NOTE.— Utah Eev. Stats., sec. 1989. No. 44. — By Witness — Grantor Unknown to OfBcer. [The same as above to and including the letters "A. B." ; then continue:] "Satisfactorily proved to me to be the signer of the above instrument by the oath of C. D., a competent and credible witness for that purpose by me duly sworn, and he, the said A. B., acknowledged that he executed the same." NOTE.— Utah Rev. Stats., sec. 1990. No. 45. — Proof of Execution of Instrument. [The same as above to and including the letters ''A. B." ; then continue:] "Personally known to me [or satisfa-ctorilv proved to me by the oath of C. D., a competent and reliable zintiiess for that purpose, by me duly sivorn] to be the same person whose name is subscribed to the above instrument as a witness thereto, who, being by me duly sworn, deposes and says that he resides in S. L., county of L., and state of Utah; that he was present and saw £. F., personally known to him to be the signer of the above in- strument, as a party thereto, sign and deliver the same, and heard 42 New Book of Forms. him acknowledge that he executed the same, and that he, the de- ponent, thereupon signed his name as a subscribing witness thereto, at the request of the said B. P. NOTE.— Utah, Rev, Stats., sec. 1994. Acknowledgments — Washington. — If acknowledgments are taken out of the state, they may be taken by any officer authorized to take them under the laws of the place where taken, but the gen- eral Washington form must be substantially followed : Ballinger's Codes, sees. 2744, 2745, And notaries, justices of the peace and commissioners of deeds must add to their certificates the date on which their term of office expires: Id,, sec. 2753. If they are taken in a foreign country, whatever form is used, the certificate must recite in substance that the instrument was acknowledged by the person or persons zvhose name or names are signed thereto as grantor or principal before him as such officer, zvith the date of such acknozvledgment: Id., sees. 4527, 4531. As to those taken out of the state to be used in the state, they must be taken before any officer who may take acknowledgments in the state where taken, or by a commissioner appointed by the governor of Washington : Id,, sec, 4527. There is a general form and one for corporations. No. 46. — General Form — Washington. State of Washington, County of Walla Walla, — ss. I [here giz'C the name of officer and official title] do hereby certify that on this twentieth day of September, IQ04, personally appeared before me [name of grantor, and, if acknowledged by ztnfe, her name, then add "his zvifc"], to me known to be the in- dividual [or individuals] described in and who executed the with- in instrument, and acknowledged that he [or she, or they] signed and sealed the same, as his [or her, or their] free and voluntary act and deed, for the uses and purposes therein mentioned. NOTE. — Washington, Ballinger's Codes, sec. 4533. No. 47. — Corporations. State of Washington, County of Walla Walla, — ss. On this ^d day of June, A. D. ipo/, before me personally ap- peared A. B., to me known to be the [president, vice-president, secretary, treasurer, or other officer or agent, as the case may be] of the corporation that executed the foregoing instrument, and Acknowledgment and Proof of Instrument. 43 acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes there- in mentioned, and on oath stated that he was autliorizcd to execute said instrument ; and that the seal affixed is the corporate seal of ' said corporation. NOTE. — Washington, Ballinger's Codes, sec. 4533a. No. 48. — Acknowledgments — Wyoming — General Form. State of Wyoming, County of Laramie, — ss. I [here give the name of the officer and his official title] do hereby certify that [name of the grantor, and if acknowledged by a wife, her name, and add "his tvife"] personally known to me to be the same person whose name is [or are] subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he [she or they] signed, sealed and delivered said instrument as his [her or their] free and voluntary act, for the purposes therein set forth. NOTE. — Wyoming, Rev. Stats., sec. 2752, No. 49. — Homestead Involved. [The same as No. 48, down to and including the last word; then insert these words : "Including the release and waiver of the right of homesteads."] NOTK — Wyoming, Eev. Stats., sec, 2752. AKBITRATION AND AWAED. What may be Submitted. — Any controversy which may be the subject of a civil action, except a question of title to real prop- erty, may be submitted in writing to arbitration to one or more persons. Questions relating merely to the partition or the bound- aries of real property may be submitted, NOTE.— California, C, C, P,, sees. 1281, 1282; Idaho,. C, C. P., sees, 3876-3880; Montana, C, C, sees. 2270-2279, Nevada Comp. Laws, sees. 3457-3470, North Dakota, C. C. P., sees. 59S0-59S9, Utah, Rev. Stats., sees, 3221-3231, and Washington, Ballinger's Codes, sees. 5102-5108, the same as in California. Alaska, nothing. Colorado, Mill's Stats., sec. 2801a- £801q, provides for a state board to adjust differences between employers and employees. Montana, Pol. Code, sees. 33.^0-3338, the same as in Colorado. New Mexico, Comp. Laws, sees. 3006-3013; Arizona, C. C, pars. 295, 309, and Wyoming, Rev. Stats., sees. 4068-4080, are substanti- ally the same as California, but fuller. Oregon, Codes and Statutes, sees. 44 New Book of Forms, 3883-3886, applies only to fence rails removed by floods. South Dakota, C. C, sec 2344, provides that an agreement to arbitrate cannot be en- forced. Submission to be in Writing. — The submission to arbitra- tion must be in writing, and may be to one or more persons. NOTE. — California, C. C. P., sec. 1282. The statute seems on its face to apply only to submissions which are made an order of court, under section 12S3, Code of Civil Procedure. The same section provides that a submission not made on order of court may be revoked at any time before award. In the absence of statutes like section 1282, Code of Civil Procedure, many states uphold parol submissions before and after award, and in California the courts would hesitate to set aside a parol agreement to arbitrate after submission and award. Such award could not be enforced by judgment and execution, but a written award would seem to be sufficient consideration for a promise to pay an obliga- tion, tlie arbitrators being the agents of one of the parties binding him by a writing upon the same principle that A is bound by a promise to pay if at his request B executes it for him and in his name. Application of Statute. — The New York statute relating to arbitration controls all arbitrations upon written submission, and is not limited to such arbitrations as provide for a judgment in some court to be entered upon the award: Wells v. Lane, 15 Wend. 99; Bulson v. Lohnes, 29 N. Y. 291. The statute does not apply to the submission of a suit pending in a court of law: Graham v. Pence, 6 Rand. 529. Com;r,on-law Right to Arbitrate. — The provisions of the statutes on the subject of arbitration do not repeal the i^ommon law in relation thereto, nor are the parties prohibited from submitting their controversies to arbitration without the intervention of a court; Conger v. Dean, 3 Iowa, 463, 66 Am. Dec. 93; Cutler v. Cutler, 48 N. Y. Sup. Ct. 470. The statute is but a reafRrmance of the common law, and gives the parties no higher rights than they might have asserted in a court of equity in case of mistake, fraud or accident: Peachy v. Ritchey, 4 Cal. 205. It is only where parties desire judgment of the court and execution upon the award that they must pursue the statute form: Conger v. Dean, 3 Iowa, 403, 66 Am. Dec. 93. The common-law rule was that any matter might be submitted to arbitration by parol agreement unless the arbitration attempt to devest the parties of some right or title to property that could pass only by written agreement, and that rule has not been changed by the statutes: Thomasson v. Rish, 74 Ky. 619. Compulsory Arbitration. — A constitutional right to have controversies determined by the courts cannot be limited or taken away by statutes and submitted to arbitration without the consent of all the parties to the dispute: St. Louis etc. Ry. Co. v. Williams, 49 Ark. 492, 5 S. W. 883. The Colorado constitiition directs the legislature to "pass such laws as may be necessary and proper to decide differences by arbitrators, to be appointed by mutual agreement of the parties to any controversy who may choose that mode of adjustment," and neither contemplates nor admits of a law providing for a compulsory submission to arbitra- tion: In re Bill Relating to Arbitration, 9 Cal. 629. The supreme court of Ohio has said that because a statute says that when railroads are in process of consolidation if a stockholder re- fuses to convert his stock into that of the consolidated company (if he and the board of directors cannot agree as to the value), "the par- Arditration and Award. 45 ties may submit the matter to arbitration," the statute does not re- quire the submission to he by the agreement of both parties: Pittsburg etc. Ry. Co. v. Garrett, 50 Ohio St. 405, 34 N. E. 493. Jurisdiction. — If the matter involved does not amount to three hun- dred dollars, a stii)ulation that the submission may be entered as an order of the superior court does not f?ive that court jurisdiction. In such case the attempt to confer jurisdiction is surplusage, and the submission and award can only be enforced by action based upon the award; and if the submission does not provide that it may be entered as an order of the superior court, the award is nothing more than a strong resemblance to a common-law submission. If, within a court's jurisdiction, a submission is made an order of court, the award will be enforced the same as if it were a judgment, but if it is not made an order of court, it can be enforced only by action based upon the award, and the amount of the award gives the court jurisdiction of the action. The award in such cases follows the general rule and will be of no avail if it was obtained by fraud, or if the pro- visions of the statute were disregarded. Limit of Jurisdiction. — In California the statute limits the power of the parties to a stipulation that the submission may be entered as an order of the superior court: Code Civ. Prnc, sec. 1283; which ex- cludes a justice's court, but the same practical result may be obtained by the submission in the usual manner, and to prevent revocation, the arbitrators making the award as soon as they have agreed. Such promptness will usually preclude revocation under section 1283. If the award is not satisfied, the prevailing party may have his action upon it, and the other party will, if prudent, satisfy the award before action when he ascertains that there is no defense on the merits, the award being founded upon a good consideration, to wit, the submission of a bona fide controversy to arbitration, which is always an agreement to abide the legal result. In Iowa it is held that a judgment rendered on award by a justice of the peace within his jurisdiction, as to amount and by the express agreement and consent of the parties is valid: Van Horn v. Bellar, 20 Iowa, 255. In another case it was held that a justice had authority to enter judgment where the stipulation to submission provided that judgment was to be entered on the award, and that the court should enter judgment on the award: Whitis v. Culver, 25 Iowa, 30. Eclating to Eeal Property. — Prior to the passage of the placer mines act of 1870 it was said that the occupant of a mining claim holds a freehold estate in the claim. "In effect," it was said, "they are practi- cally freehold estates, except some doctrine of abandonment, not per- haps applicable to such estates." Unquestionably they are; we think it would not be in harmony to deny them the "incidents" of freehold estate: Merritt v. Judd, 14 Cal. 61. The court omitted to suggest other difficulties in its way of scheduling mining claims as freehold estates, such as their passing by bills of sale, without possession; by actual transfer; by possession without a written contract of sale; their liability to forfeiture by nonusage; by being in excess of the number of square yards allowed under the miner's rules of the district; by the "working out" of the gold contained in them; by a "hard winter" preventing work in them; "by snow slides" covering them so they could not be ■worked; "by the prevalence of floods," etc. In Hughes v. Devlin, 23 Cal. 501, Merritt v. Judd is, for similar reason, affirmed. In Spencer v. Winselman, the supreme court quotes Merritt v. Judd, and Hughes v. Devlin, and appears to approve them, as far as they hold that possessore of mining claims are "treated, as between themselves and all persons but the United States, as the owners of the land and fhe mines therein," and proceed to state the true reason why the ques- 46 Ne;w Book of Forms. tion they were considering was not a "question of title to real property in fee or for life," within section 1281, Code of Civil Procedure, viz.: "It is not doubted, it says, that a party who is the admitted owner of a title in foe to real estate may contract to convey it to another, and that a controversy concerning the alleged performance or nonperform- ance of such contract may be the subject of arbitration under the statute": 42 Cal. 479. Construction of Statutes Relating to Arbitration. — Statutory provi- sions relating to arbitration are to be liberally construed: Tuskaloosa Bridge Co. v. Jemison, 38 Ala. 476; Owens v. Wither, 3 Tex. 161. The statute of Montana, sections 459-468, relating to submission to arbitration, are similar to the California statute. It is held that the provisions relating to vacating awards upon the statutory grounds do not apply to a submission which has not been made an order of court: Hartford Fire Ins. Co. v. Bonner Mercantile Co., 44 Fed. 151, 11 L. E. A. 623. A statute which empowers justices of the peace to make rules of reference and render judgment on reports in submission when the con- troversy is under two hundred dollars in amount, is not repugnant to the constitution of the state which limits the jurisdiction of justices of the peace in civil cases: Hayes v. Bennett, 2 N. H. 422. A referee appointed by the parties in a suit at law or equity under the statutes of the state possesses the same authority as an arbitrator at common law, modified by the provisions of the statute: 59 N. H. 219. An agreement to purchase anything at a valuation determined by a third person is not a siibmission to arbitration: California M. E. Church v. Seitz, 74 Cal. 287, 15 Pac. 839. A stipulation to refer a pending case to referee is not: Gunter v. Sanches, 1 Cal. 45. It is a general rule that if a claimant for benefits from societies presents his proofs to it at a hearing before a committee in whose selection the claimant had no choice, such submission does not convert the hearing into an arbitration, even if the committee is called a board of arbitration: Grimbley v. Harrold, 125 Cal. 24, 73 Am. St. Rep. 19, 57 Pac. 558. A submission of a pending action to arbitration operates as a dis- continuance of the action, and the court has no longer jurisdiction of it: Draghieevich v. Valieevich, 76 Cal. 378, 18 Pac. 406. Illegal Contracts. — An award on an illegal contract is void: Hall v. Kimmer, 61 Mich. 269, 1 Am. St. Bep. 575, 28 N. W. 96. And contro- versy growing out of a "gaming" consideration will be set aside: Haley v. Long, 7 Tenn. 93. Statute of Limitations. — If a claim barred by limitations of time is submitted, the award will be upheld: Boynton v. Butterfield, 88 Mass. 67. If the parties had no control of the matter submitted, the arbitration is void: Watertown v. Waterbury, 1 Root, 212. If one of the parties had no right to a large part of the matter submitted, the award will not be upheld: Payne v. Moore, 5 Ky. 163, 4 Am. Dec. 689. The authority of those who submit a matter to arbitration must ap- pear in the proceedings: Eastman v. Burleigh, 2 N. H. 484. No. 50. — Agreement to Arbitrate by Partners.* This submission, made and entered into this ^oth day of May, igo6, by and between R. B. C. and D. B. L., witnesseth : *This form was held to be good in the case of Cassley v. Lindsay, 14 Cal. 390. Arbitration and Award. 47 Whereas, the said parties, on or about the Qth of September, 1905, made, and entered into a copartnership, at the City of Los Angeles, which has continued up to the present time, being de- sirous of dissolving said partnership, are unable to agree upon the settlement of the accounts thereof, and concerning the pro- portions and shares, which now belong to each party therein : Now, therefore, in consideration of the premises, and to avoid recourse to a suit in the courts, the parties have agreed to mutu- ally submit, annd hereby do submit, and refer the whole matter of the settlement and adjustment of said partnership, as between the parties, to M. M., Esq. And do mutually covenant and agree, each to and with the other, to observe and abide by the de- cision and award of such arbitrator; and we further agree that the award and decision of said arbitrator shall be made an order of the [superior court] [county, or city and county of], and such award shall be made within twenty days from the date hereof. [Signed by both parties.]* Submission— "Order of Court" — Clerk's Entry — Revocation — Co-i- pelling Arbitrators to Make Award. — It maj- bo stipulated in the sub- TnissioB that it be entered as an order of the superior court; if so stipu- lated, it must be filed with the clerk of the county where the parties, or one of them, reside. The clerk then enters in his reijister of actions a note of the submission, with the names of the parties and arbitrators, the date of the submission, when filed, and the time limited by the submission, if any, within which the award must be made. "When en- tered, the submission cnnnot be revoked without the consent ot both parties. The arbitrators may be compelled by the court to make an award, and the award may be enforced by the court in the same man- ner as a judgment. If the submission is not made an order of the court, it mav be revoked at any time before award: C. C. P., sec. 1283. " Stipulation to Abide by Award. — Such agreement is not necessary; the law implies an agreement to abide by the award: Robinson v. Tem- plar Lodge, 97 Cal. 62, 31 Pac. 609. Appeal. — A stipulation in the submission that neither party should appeal is void: Mnldrow v. Norris, 2 Cal. 74, 56 Am. Dec. 313. General Stipulation to Arbitrate. — A general agreement to refer a case to arbitration will not be regarded; but if the agreement is that a party to it shall only pay the sum determined by the arbitrators, such covenant is a condition precedent to an action: Holmes v. Richet, 56 Cal. 307, 38 Am. Rep. 54. Provisions in Contracts for Arbitration of Disputes. — If the contract is uncert;iin or indefinite as to the number of arbitrators and the mode ot their seleetion. it is too uncertain to be enforced: Greiss v. State Ins. Co., 98 Cal. 241, 33 Pac. 193. •Section 382 of the practice act was, at the time of the submission, the same as section 12S3 of the Code of Civil Procedure, except the then practice act provided that it might be stipulated that the sub- v^iasion might be entered as an order of the county or district court. In both the practice act and the Code of Civil Procednre it is the sub- mission, and not the "award and decision." that may be entered as an order of court. Therefore, in using this form it is advisable to stipulate that the submission (which always precedes "award and decision") may be entered as an order of the superior court. 48 New Book oi' Forms. A stipulation to submit a matter to arbitration cannot be made ir- revocable by agreement: Tobey v. Bristol County, 3 Story, 800, Fed. Cas., No. 14.065. If the matter submitted is in issue in a pending suit between the parties it does not take away the character of the submission as a sub- mission at common law, and it may be revoked at any time before award: Minneapolis etc. E. E. Co. v. Cooper, .59 Minn. 290, 61 N. W. 143; but if the matter is submitted on stipulation to a referee, the submission is irrevocable: McGheehen v. Duffield, 5 Pa. St. 497. If counsel submit a client's case to a reference, the client has a right to revoke the submission at any time before it is acted on: Coleman v. Grubb, 23 Pa. St. 396; qualified, probably, by a reservation that if a client instructs his counsel to submit his case that he is also estopped. And such instruction may be implied. In one case counsel wanted delay, and to get it submitted to a reference, and, later, when his client ob- jected it was held that having had the benefit of delay, he could not repudiate the act of his attorney and deny his authority: Williams v. Tracy, 95 Pa. St. 308. A stipulation that all disputes that may arise in the execution of a contract may be settled by arbitration does not deprive the courts of jurisdiction. The parties may fix any mode they think fit to liquidate damages in their nature unliquidated, and if they do so, no recovery can be had in the courts until the method agreed upon has been pur- sued, or a valid excuse exists for not pursuing it. By the use of the words "valid excuse" the court means that "if such adjustment, by the mode in the agreement stipulated, or a fair effort on the part of the injured to obtain it fails, no cause of action arose": Old Sausalito Co. V. Commercial Assur. Co., 66 Cal. 253, 5 Pac. 232. Stipulation by Partners. — One partner has no authority to submit" partnership matters to arbitration: .lones v. Bailey, 5 Cal. 345. But the subject matter of a partnership and the differences between part- ners relating; to the partnership may be, or rather were, arbitrated: Foster v. Can-, 135 Cal. 83, 67 Pac. 4.3. The subject matter of an action to recover mining ground (not pat- ented) cannot be submitted: Spencer v. "Wenselman, 42 Cal. 479, cited 5 Utah, 408, 16 Pac. 404. A power of attorney to purchase land does not authorize the submis- sion to arbitration of the matter of fixing the price to be paid for the land: Talmadge v. Arrowhead Eeservoir Co., 101 Cal. 367, 35 Pac. 1000. The presentation of proofs by a beneficiary to a committee of a benefit society is not an arbitration binding upon the beneficiary: Grimbley v. Harrold, 125 Cal. 24, 73 Am. St. Eep. 19, 57 Pac. 558. A submission of matters to arbitration under an agreement which dearly shows an intention of the parties to ignore nearly all the pro- visions of the statute relating to arbitration and repudiates intention of following its requirements, or of availing themselves of the ma- chinery of the courts to arrest the arbitrators, or to correct their errors, is void as a statutory submission to arbitration, and an award thereon cannot be enforced as a judgment: Kreiss v. Hotaling, 96 Cal. 618, 31 Pac. 740. At common law any matter in controversy might be submitted by a parol agreement unless the arbitration attempted to devest the parties of some rights or title to property that could not pass by a written agreement: Thomasson v. Eisk, 74 Ky. 619. Submission — An Order of Court. — In some states the words "rule of court" are used in similar statutes. The statute provides that when the submission is made and entered as an order of court it cannot be revoked without the consent of both parties. It does not mean that the submission is irrevocable. In equity, practically all contracts are Arbitration and Award. 49 revocable, and frequently the law will grant relief as well as equity. By stipulation, an arbitration procceflinp may he made an order of court undor Code of Civil Procedure, section 1283. "When the submis- sion is entered by the clerk it is an order of court and a court may grant relief from any order or other proceeding taken through mis- take, inadvertence, surprise or excusable neglect: C. C. P., sec. 473. It may also be set aside when the validity of the contract to submit to arbitration is the fact in dispute: C. C. P., sec. 1856, subd. 2. Where courts have terms, it has been held that where the submission has been made a rule of court under a statute, if not executed by the next term the court may set aside the submission: Shelby Iron Co. v. Cobb, 55 Ala. 636. In New Hampshire the court may do it at any time for good cause shown: Dexter v. Young, 40 N. H. 130. Bule of Court. — In submissi>n to arbitration by "rule of court,"* in a suit pending, issues may be submitted, although they are not in- volved in the suit Shriver v. State. 9 Gill & J. 1. A single item of a long account may be submitted: McBride v. Hagan, 1 Wend. 326. A suit on an administrator's bond may be arbitrated: Stout v. Common- wealth, 2 Rawle, 341. A suit ir- equity cannot be arbitrated: Taggart V. Fox, 1 Grant Cas. 190. The Iowa Code, the same as the California, allowing all controver- sies which might be the subject of a civil action to be arbitrated, the qnestion whether a place is not a nuisance may be arbitrated: Richards V. Holt, 61 Iowa, 529, 16 N. W. 595. A claim against a city for dam- ages may be: Osborn v. City of Fall River, 140 Mass. 508. All cases of injury to person or property: State v. Nemaha, 7 Kan. 349. To constitute a submission so as to give the award the effect of a judgment, the statute must be pursued: Heslip v. San Francisco, 4 Cal. 1. A submission is invalid if a note of the submission is not entered by the clerk in the register of actions: Kettleman v. Treadway, 65 Cal. 505, 4 Pac. 506. The clerk of the court must be authorized by the stipulation to enter in the register a note of the submission, and the entry must be made, otherwise there is no submission: Pieratt v. Kennedy, 43 Cal. 393. Umpire. — If the submission empowers the arbitrators to select an umpire, they may select him before or after the arbitration investiga- tion has commenced, even if the written submission provides for such selection in the event of a disagreement between the arbitrators: Dud- ley v. Thomas, 23 Cal. 365. A building contract provided that in case a dispute arose respecting extra work, two arbitrators should be appointed with power to choose an umpire, and the decision of any two should be final. A dispute arose, but no request or attempt to arbitrate was made by the plaintiff. Held,' that plaintiff was precluded from maintaining an action for the value of extra work: Gray v. La Societe P^ancaise, 131 Cal. 566, 63 Pac. 848. Will Contest — Arbitration. — A will contest cannot be submitted to arbitration: Estate of Carpenter, 127 Cal. 582, 60 Pac. 1C2. When a matter is referred to two arbitrators, with power to call in a third, he will be considered an umpire between the others; and an award by two in such case will be valid: Hobson v. Mc Arthur. 41 V. S. 182. 10 L. ed. 930. In Ranny v. Edwards, it was contended that an um{)ire was a person by whose sole award the rights of the parties were to be de- termined; but the court held the contrary: 17 Conn. 309. •"Order of court" as the words are used in a gener.al submission to arbitration. New Forms — 4 50 New Book of Forms. When an umpire is appointed and it is provided in the submission that they may select an umpire, it must appear on the face of the award that the appointment of an umpire was the concurrent act of both ar- bitrators: Crisp V. Love, 65 N. C. 126. Unless the submission gives them power, arbitrators have no author- ity to call in an umpire: McMann v. Spinning, 51 Ind. 187, and other cases. When an umpire is called in, the matter must be re-examined, and an award wnthout it is void: Day v. Hammond, 57 N. Y. 479, 15 Am. Eep. 522, and many other cases. No. 51. — Submission Clause in Contract. It is agreed that in case of diflference of opinion as to the amount of loss or damages, such difference shall be submitted to the arbitrators of tzvo disinterested and competent men, mutually chosen (who in case of disagreement shall select a third), whose award shall be conclusive and binding on both parties. NOTE. — If the damages are liquidated it is said that a party may have his action in spite of his contract, upon the ground that a court's jurisdiction cannot be taken from it by stipulation. If the amount is fixed in a contract as a penalty for its violation, the amount of damages is said to be liquidated: See C. C, sec. 1671. No. 52. — Submission Clause in Contract. If a dispute should arise in reference to extra work, or in re- spect to compensation for the same, such disagreement shall be submitted to the arbitration of A. B., C. D., and E. P., and such submission shall be made and entered as an order of court. No. 53. — Affidavit that Arbitrators have not Made Their Award. [Title of Court and Cause.] A. B., being duly sworn, says : That the above-entitled matter was on May i, igoj, submitted to arbitration ; and it was stipu- lated that the subniission be entered as an order of the said su- perior court, and said submission was entered by the county clerk of said city and county, in the manner as is directed by law. 1 hat E. P., G. PL, and /. /., were named in said submission as ar- bitrators. That the time stipulated within which the award must be made has passed, and award has not been made. That ar- bitrators E. P. and G. II. have, from time to time, met, but h.ave been unable to agree, and cannot agree without the presence of said third arbitrator, upon an award. That /. /., the third ar- bitrator, appeared at the first meeting of the arbitrators after the submission, to wit, on May 2, ipoj, and the three arbitrators were jointly and severally sworn in the manner directed by law and unanimously adjourned to meet again at the same hour and place in said city and county on May 4, iQOfi, and nt fh'^ tinv-, Arbitration and Award. 51 place and hour to which the first meeting was adjourned, affiant, C. D. and B. F. and G. H. met, but the said /. /. did not appear. That on the day following, to wit, on May 5, 1905, affiant met said /. /. and asked him why he did not attend at the meeting on May 4th as agreed upon. He then said that he had too much to do and could not be there without injury to his business, and he had made up his mind to have nothing more to do with the matter. Wherefore, affiant respectfully requests the court to make an order commanding the said /. /. to show cause why he should not be held to answer for the violation of his oath that he would faith- fully hear and examine the allegations and evidence of the parties in relation to the matters in arbitration controversy between af- fiant and C. D.; [or to show cause why he should not be pun- ished for contempt because of his failure to perform his dutv as aforesaid as arbitrator, or to show cause why he should not be commanded to attend all meetings held by said arbitrators until award is made.] [Subscribed and sworn to.] No, 54. — Affidavit of Arbitrators on Order to Show Cause. [Title of Court and Cause.] /. /., being duly sworn, says that the affidavit of A. B. upon which the order to show cause in the said matter was based is sub- stantially true. That affiant overlooked the fact zvhich he ought to have knoxvn, that zvhen he made oath that "he zt'ould faithfully and fairly hear and examine the allegations and evidence of the parties in relation to the matters in controversy," that he would be guilty of perjury if he refused either "to hear fairly or faitli- fully" or to "examine the evidence," and his only excuse is that he has become so accustomed to see similar oaths violated by others that he zvas in a large degree unconscious of zi'hat he zvas doing when the oath zvas administered ; and if the court zvill ex- cuse hi)n, he zvill join zvith his fellozv arbitrators and attempt faithfully and fairly to make a just azvard. No. 55. — Order Commanding Arbitrators to Join in Attempt- ing to Make Award. [Title of Court and Cause.] It is hereby ordered that /. J. meet at all meetings with arbi- trators E. f. and G. H. in their attempts to make a just award in the above-entitled matter, and to remain at each meeting until it adjourns. No. 56. — Agreement to Arbitrate. Whereas a controversy is now existing between A. B. and C. D., arising out of a business transaction substantially as follows: On November 10, IQ04, A. B. borrowed of C. D. $1,000 and exe- 52 New Book of Forms. cutcd, acknozvledged and delivered to C. D. a mortgage upon cer- tain land belonging to A. B. to secure the payment of said loan. After that transaction A. B. and C. D. became interested to- gether in prospecting for mineral oil until C. D. became indebted to A. B. in the sum of $10,000. C. D. paid A. B. all said indebt- edness except $1,500, and A. B. threatened suit to recover said balance unless C. D. woidd release said mortgage and surrender A. B.'s promissory note for $100, zuhich C. D. refused to do upon the ground that he held the note and mortgage in trust for his wife, and that he never had any interest in the mortgage. The question to be decided is, Shall C. D. execute said assignment? Now, therefore, we, the undersigned, A. B. and C. D., afore- said, do hereby submit the said controversy to the arbitrament of E. F., G. H. and I. J.; and we do mutually agree, that the award to be made by the said arbitrators, or any two of them, shall in all things, by us, and each of us, be well and faithfully kept and observed ; provided, however, that the said award be made in writing, by the said arbitrators, or any two of them, and ready to be delivered to the said parties, on the first day of May next, and it is hereby stipulated that this submission to arbitration shall be entered as an order of the superior court of the City and County of San Francisco, State of California. No. 57. — County Clerk's First Entry in Register of Action. [Title of Court and Cause.] A. B. and C. D., Arbitrators. Submission to arbitration made May i, igo^, by stipulation that it shall be entered as an order of the Superior Court in and for the City and County of San Francisco, State of California. Submission tiled May i, 1905. Time limited by submission within which the award must be made is on or before Jxme i, 1905. No. 58. — Notice to Arbitrators of Their Appointment. To£. F., G. H., and/. J.: You are hereby notified that you have been chosen arbitrators, as well on the part and behalf of the undersigned A. B. and C. D., also, to arbitrate award, etc.; and you are requested to meet the said parties at the office of F. R., in the town of D., aforesaid, on the third day of, etc., at two o'clock P. M. of that day, for the purpose of fixing upon a time and place when and where the proofs and allegations of the said parties shall be heard. Arbitration and Award. 53 No. 59. — Notice of Hearing. To A. B. and C. D. : Yon will please take notice that the arbitrators have appointed a hearing in the matter above specified, to be had before them, at the office of S. B., in the town of, etc., on the iirst day of, etc. Notice of Meeting. — Tf notice of the time and place of meeting on the arbitration is not given to the parties, the award will be invalid as to those not nntifiod: Lutz v. Linthicum. 33 U. S. 165, 8 L. ed. 904. But no- tice of the final meeting held simply to make up and sign the award is not required: Masterson v. Kidwell, 2 Cranch (C. C), 669, Fed. Cas. No. 9269. No. 6o. — Arbitrator's Oath. We, the undersigned arbitrators, appointed by and between 5". D. and H. M., do swear that we, respectively, will faithfully and fairly hear and examine the allegations and evidence of the said parties in relation to the matters in controversy between them, and will make a just award therein, according to our understanding. NOTE.— C. C. P., sec. 1285. Conduct of Hearing — Arbitrators S-wom. — All the arbitrators must meet and act together, but when met, a majority may determine any question. Before acting, they must be sworn before an officer author- ized to administer oaths, faithfully and fairly to hear and examine the allegations and evidence of the parties in relation to the matters in controversy, and to make a just award according to their under- standing: Cal. C. C. P., sec. 128.5. Arbitrators not Sworn. — If they or any of them do not take the oath prescribed by statute, the award is invalid: Hepburn v. Jones, 4 Colo. 98. In other places it appears that if the oath is waived the award is valid: Day v. Hammond. 57 N. Y. 479, 15 Am. Rep. 522: Otis V. Northrop, 2 Miles, 350; Grafton Quarry Co. v. McCully, 7 Mo. 580. No. 6i. — Oath of Witness Before Arbitrators. You do solemnly swear [or "aflh-m"} that the evidence you shall give to the arbitrators here present on a controversv [or, "on certain matters in controversy"], between S. D. and H. M. shall be the truth, the whole truth, and nothing but the truth. So held you God. Powers of Arbitrators — Hearing — ^Adjournment— Oaths. — Arbitrators may appoint a time and place for hearing, adjourn from time to time, administer oaths to witnesses, hear the allegations and evidence, and make an award: C. C. P., sec. 1284. No. 62. — Bond of Arbitration. Know all Men by these Presents : That I. A. B., am held and firmly bound to C. D. in die sum of one tJwusand dollars. 54 New Book of Forms. lawful money [or gold coin] of the United States, to be paid to the said C. D., or to his executors, administrators, or assigns, for which payment to be well and faithfully made, I bind myself, my heirs, executors, and administrators, firmly by these presents : The condition of this obligation is such, that if the above bounden A. B., his heirs, executors, and administrators, shall and do. in nil things, well and truly abide by, perform, fulfill and keep, the award, order, arbitrament, and final determination of H P., G. H., and I. J., of, etc., arbitrators, appointed to arbitrate, award, order, judge, and determine, of and concerning all and all manner of action and actions, cause and causes of actions, suits, bills, bonds, specialties, judgments, executions, quarrels, controversies, trespasses, damages, and demands whatsoever, at any time heretofore had, made, moved, brought, commenced, sued, prosecuted, done, suflfered, committed, or depending by and between the said parties, so as the said award be made in writing under the hands of the said arbitrators, or any two of them, and ready to be delivered to the said parties in difference, or such of them as shall desire the same, on or before the iirst day of May, jpo^, then this obligation to be void, or else to remain in full force. NOTE. — Each party may give to the other a similar bond. No. 63. — Condition of Bond. The condition of the above obligation is such, that if the above- bounden C. D. shall well and truly submit to the decision of B. F., G. H. and /. /., named, selected and chosen arbitrators, as well by and on the part and behalf of the said C. D. and A. B., between whom a controversy exists, to hear all the proofs and al- legations of the parties, of and concerning a certain mining claim made by and between them aforesaid, on the first day of May, jpoj, and all matters relating thereto, so as the award be made, etc. Aribitration Bonds. — Parties may bind themselves by any penalty they may agree upon to abide by the award: Hunt v. Ziintz, 28 La. Ann. 500. A bond with a condition that the judgment should be entered in a court of record is valid as a common-law bond if it is evident from the conduct of the parties that they did not intend to make a statutory arbitration, and where the forms of such arbitration were not pursued by them: Clement v. Comstock, 2 Mich. 359. A bond was conditioned to pay the value of a thing within ninety days from the date of the award. The award was to be made within thirty days from date of submission. Held, that the bond was not limited by the precise terms of the agreement, and if the award was made within the terms of the bond, tliough at a date beyond that fixed in the agreement, it was sufficient: James v. Schroder, 61 Mich. 28, 27 N. W. 850. A clause in the bond was: "The decision of the whole, or any two of them [the arbitrators] shall bo binding, then the above obligation to be void; otherwise," etc. Held, thnt this was a condition for the performance of the award: Kisler v. Kerns, 50 N. C. 191. If a bond Arbitration and Award. 55 shows the character in which the parties sigTi it, and their respective liabilities, it is valid: Bryan v. Jeffreys, 104 N. C. 242, 10 S. E. 167. In Ohio, and other states, but not in California, the statute provides that a bond must be given to abide by the award when the submission is made a rule of court; in such case the bond must conform to the statute and contain the names of the arbitrators: W. P. Seminary v. Blair, 1 Disn. 370. A condition was "that if the abovo-bounden A. and B. shall jointly and severally submit," etc., "and shall well and truly perform the award," the effect of the condition was to render the parties mutual sureties, and each was liable for the performance of the whole award: Greenwood Assn. v. Sullivan, 1 Strob. 454. A clause in the condition of a bond that "the parties shall abide by the award of the arbitrators" docs not mean that they shall acquiesce in the award when made, but that they shall not revoke the submis- sion before the award is made: Shaw v. Hatch, 6 N. H. 162. The case of Pass v. Critcher, 112 N. C. 405, 17 S. E. 9, is exactly to the con- trary. In some states, if each party claims affirmative relief, it is the prac- tice for the parties to make and deliver to the arbitrators their prom- issory notes each to the other, the defeated party's to be delivered to the prevailing party after deduction by the arbitrators to the amount Oi their award. In Drake v. Collins, 1 Tyler, 79, and Bellows v. Barnard, Brayt. 29, such notes are held to be void, for want of consideration. Contra, Bayley v. Wiswall, Brayt. 23; Woodrow v. Connor, 28 Vt. 776, but this last case holds that such a note is good from the time of its delivery. When a bond was given to abide by an award, a party, upon the rendition of the award in his favor, may sue on the award on the bond: Nolte v. Lowe, 18 111. 437; Thompson v. Childs, 29 N. C. 435. Deposit to Abide Award. — A deposit was made with a trust company as security for whatever award was made, with instructions to pay in accordance with any judgment that may be entered upon said award. One of the parties revoked his submission. That was in New York. The ease got into court and it was held that the agreement was witliin section 2384 of the Civil Code, and that the other party had an action against him and his sureties "for the costs and expenses, and damages incurred in preparing for the arbitration and in conducting the pro- ceedings to the time of revocation": Union Ins. Co. v. Central Trust Co., 58 Hun, 610. 13 N. Y. Supp. 17, 87 Hun, 140, 32 N. Y. Supp. 838, 33 N. Y. Supp. 1135. In a case where $600, the entire deposit, was turned over by the ar- bitrators to the prevailing party to satisfy his award of $481. 8S, he pocketed the $600, and sued upon the award for $481.88. Held, that the $600 deposit was not a penalty, but a payment: Schofield v. Preston, 16 Phila. 100. No. 64. — Revocation by Both Parties, To S. N., T. P., and F. R., Esquires: Take notice, that we do hereby revoke your powers as arbitra- tors under the submission made to you by us in writinf^, and entered as an order of tlie superior court, [or as the case may be], on tlie first day of Alay, 190^ 56 New Book of Forms. No. 65. — Revocation by One Party — Order of Court. ToS. D.: You are hereby notified, that I have this day revoked the pow- ers of S. N., T. F., and F. R., arbitrators chosen to settle the matters in controversy between us ; and that the following is a copy of such revocation : [Insert the revocation made by one of the parties only.] No. 66. — Revocation of Submission. [Title of Court and Cause.] In the matter of A. B. and C. D., it is hereby stipulated that the matter of the submission to arbitration by A. B. and C. D., on May i, ipo§, and filed and entered on the same day in Regis- ter of Actions, book 112, Case No. 35,8^2, in county clerk's office of the city and county of San Francisco, is hereby revoked. No. 67. — Complaint in Action to Recover Damages on Ac- count of Revocation of Submission to Arbitration. [Title of Court and Cause.] A. B. complains of-C D., and for cause of action alleges: That on the jflf day of September, IQO^, plaintiff and defendant con- tracted together in writing as follows, to wit: [Insert copy of agreement to arbitrate.] That immediately after the execution of said contract, plaintiff made preparations to prosecute said arbitration matter, by em- ploying experts to examine books of account and to make esti- mates of value, and employed an attorney at law to assist plaintiff in gathering evidence to sustain plaintiff's contention in said ar- bitration matter, and brought witnesses to the place where the arbitrators had agreed to meet, and did meet, to wit, at room 365, No. i/6y Market Street, San Francisco, California. And plaintiff alleges that all said arbitrators met on twelve different days at the place agreed upon, in the month of October, 1902, and examined witnesses and documentary evidence ; and both plaintiff herein and defendant appeared at every meeting held and pro- duced witnesses and brought counsel with them, and said counsel conducted the arbitration, and when the evidence was all in the matter was argued by counsel on each side and submitted to the arbitrators for judgment. That, while the arbitrators were con- sidering the matter before them, but before an award was made, to wit, on October 28, ipo§, defendant served a writing on plain- tiff and on each of the arbitrators revoking the submission to ar- bitration, and without plaintiff's consent defendant revoked said submission to arbitration, and also notified plaintiff and all tlie Arbitration and Award. 57 arbitrators at the last meeting held that he would have nothing more to do with said arbitration, and the arbitrators adjourned without day. That in preparing said matter for arbitration and submission, and in arbitrating and submitting said matter plaintiff expended $16^ for witness fees, $200 for counsel fees, $60 for examining and experting books of account ; and plaintiff alleges that his own time occupied in preparing for said arbitration and attending the several meetings was a loss to him to the extent of $1^0. Wherefore, plaintiff alleges that because of defendant's revocation of said submission to arbitration he has been damaged in the sum of $373, and for which he demands judgment and for costs of this action. Revocation of Submission — Damages for. — If a submission be revoked, and an action be brought therefor, the amount to be recovered can only be the costs and damages sustained in preparing for and attending the arbitration: Cal. C. C. P., sec. 1290. Tliis section appears to apply to all arbitrations permitted by law as limited by section 1281, Code of Civil Procedure, whether made or not made an order of court, but it clearly does not deprive a party to an arbitration submission of his right f action based upon his opponent's refusal to arbitrate prior to the revocation. If the submission caused a party to permit a legal right to lapse upon the consideration of a violated promise to arbitrate, his right of action is unquestionable, under section 1709, and also under subdivision 4 of section 1710, Civil Code, or by a common-law action for damage. Revocation and Witbdrawal of Submission. — A submission cannot be withdrawn by one party without the consent of the other, in the ab- sence of fraud. The words of the statute are "mistake, inadvertence, surprise or excusable neglect": C. C. P., sec. 473; but all courts have jurisdiction to grant relief against fraud: Church v. Shanklin, 95 Cal. 62G, 30 Pac. 789, 17 L. R. A. 207; but if the submission is not made by the stipulation an order of court, it may be withdrawn at any time before the award is made: Sidlinger v. Kerkow. 82 Cal. 42, 22 Pac. 932. ii the submission is not made a rule of court it may be revoked at any time before award, but the adverse party has his action for damages on the agreement to submit: Oregon etc. Mortg. Savings Bank v. Ameri- can M. Co., 35 Fed. 22; Sidlinger v. Kerkow, 82 Cal. 42, 22 Pac. 932; but if the submission is nyt made an order of court, the only way to enforce it is by action founded upon the award: Gunter v. Sanches, 1 Cal. 45. No. 68. — Award. Tn the Mattkr of the Arbitration Be- tween R. B. C. AND D. B. L. The above cause having been heard and determined before the undersigned, M. N., named as arbitrator in the submission of the parties, filed in the court, to wit, on the thirty-first day of May, and on the first and sccoiid days of June, 1903, the parties on each day appearing, and all and singular the evidence having been heard, I hereby make award herein as follows : That the said R. B. C. is accountable to the partnership lately existing between him and said L. in the sum of :^4pi.j2. 58 New Book o^ Forms. And the said D. B. L. is accountable to the said partnership in the sum of $2,po§.Si. And that, by reason of the premises, the said C. is entitled to have and recover of said L. one-half the difference between said amounts, viz. : $2,^0^.24 1-2, and that the said partnership be- tween the said C. and L., from this date should be dissolved. NOTE. — This form is a copy of the award sustained by the supreme court in Carsley v. Lindsay, 14 Cal. 39. In the text following section 1284 of the Code of Civil Procedure, head "Forms of Awards Upheld," sixteen forms of awards sustained by courts on appeal are set out in full, minus the headings. No. 69. — Award. To the Superior Court of the City and County of San Francisco, State of California: The undersigned, to whom were submitted, as arbitrators, the matters in controversy existing between A. B. and C. D., as by their submission in writing, and bearing date the tirst day of May, IQ04, more fully appears : Now, having been first duly sworn according to law, and having heard the proofs and alle- gations of the parties, and examined the matters in controversy by them submitted, do make this award in writing ; that is to say, the said C. D. shall make, execute, and deliver to the said A. B. on or before the fifth day of June, instant, a good and sufficient assignment of a certain mortgage, executed by A. B. to C. D., on November 10, IQ04, to secure the payment of the sum of $1,000 by A. B. to C. D. That the satisfaction shall be acknowledged before a notary public and be delivered to C. D. without any payment therefor. And we do further award that the said A. B. and C. C. shall, within ten days next ensuing the date hereof, seal and execute unto each other, mutual and general releases of all actions, cause and causes of action, suits, controversies, claims, and demands whatsoever, for or by reason of any matter, cause, or thing, from the beginning of the world down to the date of the said submission. I dissent /. /., Arbitrator. Variation of Award (A). ["The said A. B. shall henceforth forever cease to prosecute a certain suit commenced by him against the said C. D., in the superior court of, etc., now pending and undetermined in the said court; and the said C. D. shall pay, or cause to be paid, to the said A. B., on or before the first day of, etc., the sum of one hun- dred dollars, in full satisfaction of the costs, charges, and ex- penses incurred by the said S. D. in and about the prosecution of his suit, as aforesaid."] Arbitration and Award. 59 Variation of Award (B). [Or, "the said A. B. shall pay, or cause to be paid, to the said C. D. the sum of one hundred dollars, within ten days from the date hereof, in full payment, dischrrge, and satisfaction of and for all moneys, debts, and demands, due or ozving from him, the said A. B., to the said C. D."] Award, How Made — Service on Attorney. — The award must be in writing, signed by a majority, and delivered to the parties. When the submission is made an order of the court, the award must be filed with the clerk, and a note thereof m.ade in his register. After the expira- tion of five days from the fili>!g of the award, upon the application of a party, and on filing an affidavit, showing that notice of filing the award "has been served on the adverse party or his attorney at least four days prior to such application, and that no order staying the entry of judgment has been served, the award must be entered by the clerk in the judgment-book, and thereupon has the effect of a judgment: Cal. C. C. P., sec. 12S6. Award. — The validity of an award depends upon proper appointment of the arbitrators, and' the regularity of their proceedings. Unless the parties have notice of the time and place of their meeting and an op- portunity to be heard, their award is void: Curtis v. Sacramento, 64 Cal. 102, 28 Pac. 108. Parties to an arbitration are presumed to know that an award will be final, and that they must exercise due diligence in presenting their evidence: Montifiori v. Engles, 3 Cal. 431. If the submission is agreed to be made an order of court, the arbi- trator must make his award within the time limited in the agreement. In such case both the arbitrators and the court lost jurisdiction of the proceeding unless there is a stipulation to extend the time: Ryan v. Dougherty, 30 Cal. 218. An Award must bs Certain and Decisive: .Jacob v. Ketcham. 37 Cal. 197. If the object is to make an end of litigation, and the award is uncertain and incomplete upon its face, it will be set aside: Pierson v. Norman, 2 Cal. 599. It is not necessary that an award should provide that either party shall recover anything from the other. In this case, it was found that a balance was due from one party to the other, and definitely settled the rights of the partners in the partnership property: Ful- more v. McGeorge, 91 Cal. 611, 28 Pac. 92. The arbitrators must pass upon the whole subject in controversy. If the terms of the award render a further inquiry necessary, the award is void: Porter v. Scott, 7 Cal. 312. The award must not go beyond the submission: "White v. Arthur, 59 Cal. 33. If the award does not disclose that each matter submitted is passed npon. it will be set aside on motion. If the submission is general, those matters only which are laid before the arbitrators must be passed upon: Muldrow v.'Norris, 12 Cal. 331; Carsley v. Lindsay, 14 Cal. 390. If the award on its face appears to determine all matters submitted, and which shows on its face that further inquiry is unnecessary, it is complete: Fulmore v. McGregor, 91 Cal. 611, 28 Pac. 92. If a party deceitfully or intentionally withholds matters from the arbitrators upon a general submission, ' he is estopped to recover an omitted demand designedly withheld: Wyman v. Perkins, 39 N. II. 218; Robinson v. Morse, 26 Vt. 392. 6o New Book of Forms. UnreasonalDle Award. — An award will not be set asirlo in equity on the ground that it is unreasonable and unjust, if there be no corruption, partiality nor misconduct of th( arbitrators, nor any fraud practiced W either of the parties: Davy v. Faw, 11 U. S. 171, 3 L. ed. 305; Under- hill V. Van Courtland, 2 .Johns. Ch. 339. See 8 Am. Dec. 513. An award provided that judgment shall be entered against one of the parties unless he, in conjunction with certain persons not parties to the submission, and over whom he had no control, make a deed to the other party: Karthaus V. Ferrer. 26 U. S. 222, 7 L. ed. 121. But an award was held to be void which required a party to the submission to cause a third person, whom it does not appear he has any right to dispossess, to deliver the possession of land to the other party: Martin v. Williams, 13 Johns. 264. An award must be reasonably pos- sible of performance: Dunlap v. Campbell, 5 W. Va. 19.5. Uncertain Awards. — An award that "A. sh.all pay to B. the sum of money which B. paid to A. for the purchase of two horses, which were sold together to A. for $300," is void for uncertainty: Howard v. Bab- cock, 21 ni. 259. On the submission of the liability of a party on an alleged sale and constructive delivery of twenty-five barrels of sugar, the umpire awarded "that the facts were sufficient to constitute a customary de- liverv of the sugar," but failed to show the amount of the sugar or the price to be paid, or to give any data by which the same could be ascertained by computation. Held, to be void for uncertainty: Ingra- ham V. Whitmore, 75 111. 24. An award that a party to the submission pay the difference between a tax receipt and a note, which dofs not set out said papers, and is not accompanied by them, and does not refer to them by date and amount, is void for uncertainty: Hollingsworth v. Pickering, 24 Ind. 65. An award that B. should pay A. a certain sum "in property as good as he had received," and that A. should pay B. "the amount which B. had paid to E., " is void for uncertainty: Banks v. Adams, 23 Me. 259. An award for a certain sum of money "in furniture" is void for uncertainty: Ramler v. Brotherline, 1 Pears. 462. "For the balance due on a single bill," without reference to indorsements or payments on the bill, is void for the same reason: Burkholder v. McFcrron, 3 Serg. & E. 422. That W. pay J. $500, "including the rent that would be due by J. at the termination of the lease at rising sun," void for the same reason: Stanley v. Southwood, 45 Pa. St. 189. A statute similar to that of California, declaring that no submission to arbitration "shall be made respecting the claim of any person to any estate, in fee or for life, to real estate," a submission and award of that nature is not merely voidable, but void; and therefore incapable of ratification: Weles v. Peck, 26 N. Y. 42. Finality of Award. — If the award leaves the matter submitted open to controvf-rsy, it is void: McCullough v. Myers, 3 Ky. 206. If the award is not final, the consideration for the agreement to arbitrate fails, and either party may insist upon setting it aside: Patton v. Baird, 42 N. C. 255. The point covered by the two cases above cited was said to be the law in Carnochan v. Christie, 24 U. S. 446, 6 L. ed. 516, and in Lutz V. Linthicum, 33 U. S. 165, 8 L. ed. 904. If the award is conditional or alternative, it may be in effect final, and if so will be upheld. For example: "Judgment shall be entered against A. for $10,000 unless he surrenders to B. the possession of the schooner 'Mary B. ' " Such awards are upheld in Thornton v. Carson, 11 U. S. 596, 3 L. ed. 451, and many other cases. Lands, Title to, etc. — An award is not void because it decides that a tract of land belongs to one of the parties: Crabtree v. Green, 8 Ga. 8. It may settle boundaries without ordinary releases: Rogers v. Kenwick, Arditration and Award. 6i 1 Qnincy (Mass.), -^27. Arbitrators not having power to vest title to land in either party, an award that one party is to take land of the otiier narty at a stated price, hut directing no conveyance to the other, is not final: Miller v. Moore, 7 Scrg. & R. 164. lu California the title to real property iu fee or for life cannot be submitted to arbitration: C. C. P., sec. 1281. It would seem that an award directing A. to exe- cute and deliver to B. a quitclaim to tract C. would not be void. An award that T. shall have the right to support for his building in a wall erected bv S. is not objectionable. Title is not involved: Trues- dale V. Straw, 58 N. H. 195. Strict Law need not be Followed. — Arbitrators are not bound to de- cide according to strict law under a general submission, but when they state the reasons for their award, it will be presumed that they intend to decide according to law, and in such case a mistake apparent upon the face of the award is fatal: Muldrow v. Norris, 2 Cal. 74, 56 Am. Dee. 313. Forms of Awards Upheld. — "We, the arbitrators, find and agree that P. [the vendor] pay S. [the vendee] $^30, and take the crop as it now Btands. on the said plantation." Held, to be sufficiently certain: Pike v. Stallings, 71 Ga. 860. We find that "there is due and owing by A. to B. the sum of $^00, and that judgment be rendered by the court in favor of B. the sum of $^00 and costs," is certain: Garitee v. Carter. 16 Md. 309. The question to be arbitrated was. as to whether A. had trespassed upon the land of B. The award briefly said: We find that "there was no trespass." It was certain: Harralson v. Pleasants, 61 N. C. 365. An award for.l. "of three judgments against B., dated 21 of Becem- T>er, 1813, amounting to $165, with interest; also one other judgment amounting to $40, dated November 16, 1S16, together with interest": Held, to be sufTieiently certain: White v. .Jones, 8 Serg. & R. 349. An award "that one of the parties shall own in his own right all the interest wh-ch the parties joirtly had in a brewery situated at B.," is not uncertain: Byers v. Von Deusen. 5 Wend. 2(.i8. A dispute arose about the right to the possession of a sawmill, etc., and the award was: "We award to A. one-third of the sawmill, ane-third of the mill yard, and one-third of the rrater privilege, and land enough to make in all tiro-thirds of five acres bounded," etc., to be so surveyed as not to include B.'s house and barn, and A. to remove a certain grist- mill adjoining said sawmill within three months," is not uncertain: Hewett'v. Fiirman, 16 Serg. & R. 135. In awards, such descriptions as the "Peter tract," the "RHey tract" and the "Mill tract" or the "Eds tract" will be upheld: Farris v. Ca- perton, 38 Tenn. 606. An award requiring convey.ances to be made of certain portions of land "up to the original claim lines" is not invalid: Williams v. Warren, 21 HI. 541. The dispute was whether A. had the right to stop the water from B.'s shingle-mill, and also the right of the party to the use of the water. The award was that "A had the right for the use of his saw- mill to stop in a pnidont, proper and judicious manner, and retain the water from the shingle-mill by a dam above and near the Durgau bridge, and at the place where the dam then stood, and of the height of the present dam, sufficient to operate the sawmill as it had been operated eince the dam near the bridge had been built, and not otherwise, and that B. should not, in any manner nor for any purjiose, obstruct the water, but should permit A. to use it without molestation." Held Bufficient: Pike v. Gage, 29 N. H. 401. An award that a mill owner should "keep on said cap log flash-boards twelve irures wide, at all rimes except in times of freshet," was upheld as to the form, but set aside because the word "freshet" was so vary- 62 New Book of Forms. ing in meaniTig as to necessitate constant litigation: Harris v. Social Mfg. Co., 9 E. I. 99, 11 Am. Eep. 224. An award that T. shall have the right of support for his building and the timbers thereof in a wall erected by S., separating the buildings of T. and S. in as full, ample and secure a manner as they are now supported therein, for so long a time as said wall shall be capable of furnishing said support, and not to become ruinous and unsafe, and that S. shall have the same right of support for her building and the tim- bers thereof in the wall of said T. in the manner they are now sup- ported thereby, and for the same time: Truesdale v. Shaw, 58 N. H. 207. An award providing that notes which were ordered by the award should be "satisfactorily secured" upheld, because the words above quoted had a well-known commercial meaning: Cutter v. Cutter, 48 N. Y. Super Ct. 470. The question submitted was the value of work on a house. The arbitrators set out the items of work done and set a value to each item. Award held to be clear and certain: Saunders v. Heaton, 12 Ind. 20. A countv had a dispute with its treasurer in respect to the amount due it. The arbitrators found as follows "We find the said J. deficient in the teacher's fund $66o.go; interest thereon at 6 per cent, to Decem- ber 75, 1883, $144-48. We find J. deficient in the contingent fund $143.24 ; interest on the same to December 75, 1883, $10.67. Total deficiency, with interest added on all funds, $g=,7.o8." Award held to be certain: Dis- trict Tp. of Walnut v. Rankin, 70 Iowa, 65, 29 N. W. 806. "We agree that E. S. pay all costs, and assess the plaintiff's damage to ^700," interpreted by the court to mean that defendant E. S. was "awarded" to pay to the plaintiff $100 and also his costs expended in the cause referred: Carter v. Sams, 20 N. C. 182. Arriving at Decision by Chance. — Arbitrators each vsrrote down a sum for the award and divided the aggregate by the number of arbitrators. After that was done each gave, the court said, a "clear" assent to the result thus arrived at, and held the award to be valid: Whitlock v. Duffield 1 Hoff. Ch. 110; but in another case it was said that where they arrived at a decision by dividing by two the aggregate sums which each thought the plaintiff was entitled to, it was held to be ' vslid: Luther v. Medbury, 18 R. I. 141, 49 Am. St. Rep. 753, 26 Atl. 37. In another case the parties were each separately asked at what sum he valued a certain privil'^ge in dispute, and, comparing the answers with their own (the arbitrators') estimates, took the mean between the estimates of the parties as the award. Held to be valid: Brown V. Bellows, 21 Mass. 179. Eeasons for Award. — Arbitrators are not required to find facts nor give reasons for their award: Connor & Pratt Arbitration, 128 Cal. 279, 60 Pac. 862. No reasons need be given by arbitrators for their award. Their duty is best discharged by a simple announcement of the result of their in- vestigations: Curtis V. Staring, 4 Wend. 198, and the other cases in Maryland and North Carolina. If arbitrators give their reasons and they do not state a cause of action, the award will not, for that cause, be vacated: Goodwin v. Yar- brough, 1 Stew. 152. If arbitrators, in their award, state thoir reasons for it, it will be presumed that they inton- tion, but clearly means what courts designate as legal fraud, which may have resulted from honest intention. The intent to commit actual fraud "is always a question of fact": C. C, sec. 1573. Actual fraud is, among other acts, the positive assertion in a manner not warranted by the information of the person making it, of that which is not true, "though he believes it to be true." Also "any other act fitted to dec( ive is a fraud": C. C, sec. 1572. Any improper proceeding — that is to say, any act whatever which the court may tliink prejudicial to a party — is a good ground for relief, which practically gives the court authority to grant rehearing sub- stantially upon the same grounds they are authorized to gi'ant new trials in civil cases: C. C. P., sec. 657, subds. 1, 2, 5, 6, 7. Impeachment of Award. — An award cannot be impeached because it is contrary to law and evidence. The Code of Civil Procedure, sections 1287, 1288, prescribes the sole grounds to vacate an award on motion: C'arsley v. Lindsay, 14 Cal. 390. This case was decided prior to codes. Section 336 of the practice act was identical with section 1287, Code of Civil Procedure; but at that time there was no enactment similar to sections 1572, 1573 of the Civil Code. In Carsley v. Lindsay, it was attempted to correct the award on mo- tion. The court does not hold that the error complained of was not subject to correction, or review, on motion. The decision decided a point of practice only. Refusal to Postpone Meeting. — If they unreasonably refuse to post- pone a meeting, the award may be set aside: Torrence v. Amsden, 3 McLean, 509, Fed. Cas. No. 14,103. Time to Procure Witnesses. — .A.n award will be vacated if arbitrators refuse time to a party to procure an absent witness: Torrence v. Amsden, 3 McLean, 509, Fed. Cas. No. 14,103; Hollingsworth v. Leiper, 1 Dall. 161. Refusal to Hear Witnesses. — Refusal to hear evidence, pertinent and material, is good ground for setting aside their award: Vancourtland v. [Jnderhill, 17 Johns. 405. Delegation of Authority. — Arbitrators cannot delegate their authority: Lrll V. llardtsty, 13 Ky. 831. Errors and Misconduct. — An award will not be disturbed unless it shows errors of law or fact on its face: Tyson v. Wells. 2 Cal. 122; even if it is made to appear that the arbitrators consulted with others, if it appears that thev acted on their own judgment in making the award: Simons v. Mills, So' Cal. 118, 22 Pac. 25. If the awardee accepts the judgment award, and receives the amount awarded in satisfaction, he thereby waives all errors or misconduct on the part of the arbitrators: Hoogcs v. Morse, 31 Cal. 128. The statute must be substantial! v complied with: Fairchild v. Doten, 42 Cal. 125; Krciss v. Ilotaling, 96 Cal. 622, 31 Pac. 740. Parol Evidence Outside of the Award. — If final on its face, no agree- ment dehors it will be heard to show that it is open for further proof: Todd V. Barlow, 2 Johns. Ch. 551. After a general award a court will not inquire into mistakes by evidence outside of the record of it: Mul- drow V. Norris, 2 Cal. 74, 56 Am. Dec. 313. Mistakes of arbitrators in matters of law may be proved by extrinsic evidence in order to set aside an award: Claypool v. Miller, 4 Blackf. 163; that is to say, if a reference be to common-law arbitrators, objeo- 70 New Book of Forms. tions to an award may be shown by extrinsic evidence: Moore v. Bar- nett, 17 Ind. 349. If an award is lost, parol evidence will be admitted to prove its con- tents. Brown v. East, 21 Ky. 405. The existence of an award may be proved by parol: Parker v. Pawtucket Mut. Fire Ins. Co., 3 E. T. 192. If the award is ambiguous, its terms may be explained by parol: Butler V. City of New York, 1 Hill, 489; a witness will not be permitted on the hearing of exceptions to a report, to prove that the referees had misunderstood his meaning: Howard v. Salter, 1 Brown, 90. It may be shown by parol that, by consent, arbitrators had been sub- stituted for those appointed by the court: Douglas v. Brandon, 6.5 Tex. 58. If the terms of submission are uncertain, parol evidence may be given of the matters submitted. The meaning of the expression "certain controversies and accounts" in a written submission may be ascer- tained by parol: Davy v. Faw, 1 Cranch C. C. 440, Fed. Cas. No. 3663. Extrinsic evidence may be used to identify the matters submitted: Burros v. Guthrie, 61 111. 70. The terms of a submission cannot be varied by parol: Eichardson v. Suffolk Ins. Co., 44 Mass. 573. It is not necessary to state in an award the reasons for it, but evidence aliunde may show what were the points decided: Shackelford v. Purket, 9 Ky. 435, 12 Am. Dec. 422. It is said that "parol evidence is not only ad- missible to show what matters were acted upon by arbitrators": Brown V. Brown, 49 N. C. 123. In an action on an award parol evidence is admissible to show what matters were submitted and what matters were brought to the notice of the arbitrators: Walker v. Walker, 60 N. C. 255; and also to show upon what matters the arbitrators acted: Osborn v. Calvert, 83 N. C. 365. An award cannot be impeached by parol evidence that the arbitrators did not intend what the award shows on its face they did do: Doke v. James, 4 N. Y. 568. A written award is not open to modification accord- ing to what was the understanding of the arbitrators: Scott v. Green, 89 N. C. 278. An award cannot be assailed by the parol testimony of one of the arbitrators except upon the ground of fraud, partiality or corruption: King V. Jemison, 33 Ala. 499. Under Alabama code, section 3447, an arbitration is final unless im- peached for partiality, fraud or corruption. Held, that the testimony of arbitrators is not admissible to show error or mistake in their de- cision: Chapman v. Ewing, 78 Ala. 403. Bias, Prejudice or Interest, of Arbitrator. — Where arbitrators de- riv'd their nnthnrity from the parties and not from the court, right business relationship is not ground for setting aside the award: Fisher V. Towner, 14 Conn. 26. An arbitrator selected by one' party who was not on speaking terms with the other party, and showed his prejudice and malice in considering the case, is not a proper person to act if the court recommits the award for further action: Brown v. Harper, 54 Iowa, 546, 6 N. W. 747. A small indebtedness of an arbitrator to one of the parties and it is not shown that it was insecure, or that its payment depended on the result of the controversy, is not a reason to set aside an award: Ander- son V. Burchett, 48 Kan. 153, 29 Pae. 315. An arbitrator being a creditor of one of the parties is no objection in the absence of evidence of his partiality to his debtor: Wallis v. Carpenter, 95 Mass. 227. The presumption is that he is not partial un- less he is abundantly secure. It is gross misconduct for a person who has formed and expressed an opinion on the case to serve as arbitrator without informing the parties Arhitration and Award. 71 of tho fact: Boattie v. Tlillia'-d, 55 N. IT. 428. "Where parties agree that all disputes may be refcrreil to A., if the fact is concealed that he is a partner of the other one of the parties, his award is void: Connor v. Simpson, 7 Atl. 161. Relationship Disqualifies. — Davis v. Forshee, 34 Ala. 107; Spearman v. Willson, 44 Ga. 473. But the rule is not applicable where the relative was, by his relative, urged to sit: Daugherty v. McWhorter, 15 Tenn. 256. Knowledge of Party. — Generally, where it appears the objecting party knew, at the time of the submission, or during the hearing of the matter in controversy, that the arbitrator was either biased, prejudiced or interested, it is too late to object after award is made. This is sustained by the reasoning in Baltimore etc. R. Co. v. Canton Co., 70 M.l. 405, 17 Atl. 394. Testi'i ony and Examination of Arbitrators. — An arbitrator will be allowed to sustain but not to impeach liis award: Stone v. Atwood, 28 111. 80. He may show whether a certain claim was included in the award: Stevens v. Gray, 2 Harr. 347. He may give evidence to establish a mis- take in the award : King v. Armstrong, 25 Ga. 264. Contra, Newland v. Douglass, 2 Johns. 62. He is not allowed to testify as to the construction of his award: Mulligan v. Perry, 64 Ga. 567. He cannot be called upon to disclose the grounds upon which the award ■was made: Kingston v. Kincaid, 1 Wash. C. C. 448, Fed. Cas. No. 7821. Entry Set Aside. — Judgment vacated where submission is illegal: Van Dyke v. Besser, 35 Ga. 173. An award will not be set aside because of fraud in original cause of action, when the facts were known, when the motion to enter judgment on the award was made: Clark v. Thur- man, 46 Ga. 97. Courts of equitv will set aside awards for fraud, mistake or accident: Muldrow V. Norr'is, 2 Cal. 74, 56 Am. Dec. 313; explained, 2 Cal. 130; approved, 2 Cal. 325, 4 Cal. 125, 207; cited, 14 Cal. 394; Craft v. Thomp- son, 51 N. H. 544. It will not be set aside if the provisions of the stat- ut . are substantially complied with; but if an award is not good under the statute, but is good as a common-law award, it will not be set aside: Matter of Kreiss. 96 Cal. 617, 31 Pac. 740. Award Against Law, etc. — Courts will set aside awards for fraud, mis- take or accident, when it appears on the face of the award: Peachy v. Ritchie, 4 Cal. 205; Muldrow v. Norris, 2 Cal. 74, 56 Am. Dec. 313. This ease was cited in 2 Cal. 130, 325, 4 Cal. 125, 207, and 14 Cal. 394. Arbitrators did not appoint time to hear proofs nor did they hear proofs; did not act upon their independent judgment, but acted under an agreement between two insurance companies and one of the arbi- trators. The consent to the award by the insurance company was ob- tained by the concealment of books and inventories which would have shown that the loss was much less than the award. Held, that such action vitiated the consent of the insurance companies to the award: Stockton Agricultural Works v. Glens Falls Ins. Co., 98 Cal. 557, 33 Pac. 633. Award Corrected. — The court may, on motion, modify or correct the award, where it appears: 1. That there was a miscalculation in fig- ures upon which it was made, or that there is a mistake in the description of some person or property therein; 2. When a part of the award is upon matters not submitted, which part can be separated from other parts, and does not affect the decision on the matters submitted; 3. When the award, though imperfect in form, could have been amended if it had been a verdict, or the imperfection disregarded: C. C. P., sec. 1288. When the verdict is announced, if it is informal or insuflicient in not covering the issue submitted, it may be corrected by jury under the advice of the court, or the jury may be again set out: C. C. P., sec. 619. 72 New Book of Forms. AmetK'ing Verdicts. — The conrt may amend a verdict when it is de- fective in something merely formal, and which has no connection with the merits of the case: Perkins v. Wilkins, 3 Cal. 137. No. 74. — Notice of Motion to Correct Award. [Title of Court and Cause.] Please take notice that A. B. will move the court to correct the award filed herein on August j, ipoj, by striking out the sum of $73.65 awarded in favor of C. D. The motion will be made upon the affidavit of A. B. filed herein on application to stay the entry of judgment herein, and all the ])apers in the matter, and on the ground that said amount was inserted in the award by mistake. No. 75. — Order Staying Entry of Judgment on Award. [Title of Court and Cause.] Upon application of C. D., supported by his affidavit, and upon the award and other papers on file herein, it appearing that there is good cause therefor, it is ordered that the entry of judgment upon said aw^ird be, and the same is, by this order, stayed until the further order of this court. No. 76. — Order Amending Award. [Title of Court and Cause.] This matter came on to be heard upon motion after a hearing on the merits, all parties being present at the hearing ; it is ordered that the clerk of this court deduct from the award filed on August ?, 7905. the STim of $73.73, and that judgment be entered for the amount of the award as so reduced. No. 77. — Order to vShow Cause Why Award Should not be Vacated and Staying the Entry of Judgment. [Title of Court and Cause.] To. A. B.. Please take notice that on Friday the fifteenth day of July, IQ03, at 10 o'clock A. M., in the above-entitled action, C. D. will move the court to vacate the award made in said matter upon the ground that it was procured by fraud, and said motion will be based upon the papers in the matter and upon the affidavit of C. D., a copy of which is served with tliis notice. Arbitration anq Award. 73 No. 78. — Order Vacating an Award and Ordering a Rehearing. [Title of Court and Cause.] This matter comiriG^ on to he heard, and after hearing hoing submitted, it is ordered the award herein made be vacated and the whole matter be, and is hereby, submitted to the same arbitrators for rehearing in accordance with the opinion of this court this day given. No. 79. — Affidavit on Motion to Modify or Correct an Award. [Title of Court and Cause.] A. B., being sworn, says : That he is one of the parties in the above-entitled matter. That in the award made in said matter and filed on August j, ipoj, it appears upon the face of the award that in computing interest on tlie amount awarded in favor of C. D. a miscalculation of the interest due upon $12,76^.72, from January 5, 1902, to August j, 1905, to the amount of $73-6^ against afHatU; that notice of said award has been served on affi- ant, and unless said mistake is corrected, it will become final. Wherefore, affiant prays for an order, staying the entry of judgment on said award until the further order of the court.* Practice — Appeal from Decision. — Decision upon the motion is sub- ject to appeal in the same manner as an order in a civil action; but the judgment entered before a motion is not subject to appeal: C. C. P., sec. 1289. Practice After Award is Filed. — When the submission is made an order of court the award must be filed with the clerk and noted in his register of actions. The clerk has authority to enter judgment upon application of a party upon the award without an order of court, but he has no authority to do so prior to the expiration of five days after the award IS filed; and then he has no authority to make the entry unless an aflS- davit is filed in the arbitration proceedings, showing that no order staying the entry of judgment has been served; and also showing that notice of filing the award has been served on the adverse party or his attorney at least four days prior to the application to enter judgment. Appeal. — After notice of service that an award has been served, the dissatisfied party has four days within which to make his motion to vacate the award. If a motion is not made to vacate the award before judgment, appeal from the judgment is not allowed, but appeal is al- lowed from the order denying the motion. It is not misconduct to neglect to swear witnesses unless it is shown that the appellant asked to have them sworn, or objected to their not being sworn, or excepted to their unsworn statements. The only grounds for vacating or modifying an award are those set forth in sections 12S7, 1288, of the Code of Civil Procedure, which grounds do not include ordinarv error or faults of judgment, but only "gross" faults: Arbi- t-ation^ Between Connor and Pratt, 128 Cal. 279, 60 Pac. 862. *An order made ex parte may be discharged ex parte. In cases of such glaring mistakes they are seldom refused: C. C. P., sec. 937. 74 New Book of Forms. It was objected on appeal that notice of tbe time and place of nr^et- ins: had not been g^iven to the defendant. The court said that the pres- ence of the defendant when the arbitrators met, and his telling them to go ahead, and his being represented at his direction through the pro- ceedings by his foreman, and his taking possession of the award, con- stituted a waiver of all objections by him: Foster v. Carr, 135 Cal. 83, 67 Pac. 43. ASSIGNMENT. No. 8o. — Assignment Annexed to Instrument. Know ali. Men by these Presents: That 7ve, F. S. and R. C, named in the annexed instrument, in consideration of the sum of one hundred thousand dollars, gold coin of the United States, to us in hand paid by W. B. and J. B., of the City and Coimty of San Francisco, and State of California, the receipt whereof is hereby acknowledged, do, by these presents, sell and transfer, to the said B. and B., their heirs and assigns, the said instrument, and all our right, title, and interest in and to the same, authorizing them in our names, or otherwise, but at their ov/n cost, charge, and expense, to enforce the same according to the tenor thereof, and to take all measures which may be necessary for the recovery of the within instrument. Contract Assignment — What may be Assijmed. — Choses in action, con- i ngent interests and expectations, things that do not but may possibly exist, if such assicjnmcnts are fairly made and are not against public policy. Tn such case the assignment will take effect when the subject assigned becomes a reality. A contract to sell all cr any part of the product of a farm garden, or, in brief, all or any fruit of the earth before it is even planted, during a stated season upon a stated farm, etc., may be assigned: La Kue V. Groezingcr, 84 Cal. 281, 18 Am. St. Rep. 179," 24 Pac. 42. A controller's warant may be, and is, subject to all defenses which would be allowed against the first holder: National Bank of D. O. Mills V. Herold, 74 Cal. 603, 5 Am. St. Eep. 476, 16 Pac. 507. A contract not to run boats on a certain line of travel and upon violation of the contract to pay a stated sum of money gives a right of action to an assignee of the contract: Cal. Steam Nav. Co. v. Wright, 6 Cal. 325. For the same reason a contract to pay money on condition that a defendant would withdraw his defense to a suit: Gray v. Garrison, 9 Cal. 248; and so is a contract for the use of a Btaliion for a season; and a purchaser of the horse from the ov.Tier is entitled to all the benefits arising out of such contract: Doll v. Ander- son, 27 Cal. 248. A provision in a contract that it should not be assigned without the written consent of ^he n+her party to the contract does not bar an assignment of money to become due under the contract as security for Assignment 75 iudobtcdncss of the contractor to the assignee: Norton v. Whitehead, 84 C;al. 263, 18 Am. St. Rop. 172, 24 Pac. 154; Edwards v. Rolley, 96 (Jal. 408, 31 Am. St. Rep. 234, 31 Pac. 267. An attorney may assign a debt due for services rendered, if the ser- vices he agreed to perform arc practically rendered: Taylor v. Black Diamond Coal Mine, 86 Cal. 589, 25 Pac. 51. Plaintiff's partners delivered to defendants gold to be taken to San Francisco, and coined for their benefit, and returned to them. While the gold was in the hands of defendant, C. sold to plaintiff his interest in the gold and gave a receipt evidencing the sale. Defendant, after the sale, received coin for the gold and a creditor of C. attached the coin by garnishing defendants. Defendants had no notice of the sale by C. to plaintiff until the day after the garnishment, when plaintiff demanded C. 's share of the coin. Held, that the gold in defendant's hands was in the constructive possession of all the owners. C. had no exclusive interest in any part of the gold until it was coined and divided among the owners, and therefore plaintiff was entitled to recover: Wall- ing V. Miller, 15 Cal. ?>S. A voluntary promise not to assign is not binding: Cal. Steam Nav. Co. V. Wright, 8 Cal. 585. As to public lands, the right to be protected is a person's constructive possession. It is a personal right to one who complies with the law; and if assignable at all is only assignable to one who shall actually reside upon the land: Wolf skill v. Malajowich, 39 Cal. 276. The privilege of pre-emption attaches to the land, and is therefore assignaljle: Laffan v. Naglee, 9 Cal. 602, 70 Am. Dec. 678; but in a later case it was said that the right to a pre-emption in public lands is not assignable: Whitney v. Buckman, 13 Cal. 536; Norris v. Heald, 12 Mont. 287, 33 Am. St. Rep. 581, 29 Pac. 1121; Quinn v. Kenyon, 38 Cal. 499. After a pre-emptor has made the necessary proofs, and paid for the land, and received a certifieatj of purchase, and before the patent issues to him, he may make a valid sale of the land: Thurston v. Alva, 45 Cal. 16. As to a soldier's addition homestead right, after entry is made, and before the patent is issued he may sell the land and pass a good title thereto: Stewart v. Sutherland, 93 Cal. 270, 28 Pac. 947. A cause of action for malicious prosecution is not assignable: Law- rence v. Martin, 22 Cal. 173. Independent of the debt it is given to secure, a mortgage has no assignable quality. The assignee of a mortgage, without an assignment Oi the debt for which it was given, takes nothing by the assignment: Polhemus v. Trainer, 30 Cal. 685; Hyde v. Mangan, 88 Cal. 319, 26 Pac. 180. C. contracts with an owner of land to farm land and for compensa- tion was to have one-fourth of the increase of all the cattle on it at the end of five years. Held, that C. had no present interest in the cattle until the end of five years, and therefore he has nothing there attach- able or assignable: Fitch v. Brockman, 3 Cal. 348. Laborers' claims under mechanic's lien law may be assigned after notice of such claims is given as referred by the lien law: Mohle v. Tschirch, 63 Cal. 381. A right of action for the wrongful taking and conversion of personal property is assignable, and the assignee may recover in his own name: Lazard v. Wheeler, 22 Cal. 139. Assignment of his salary by a public officer before it becomes due is contrary to public policy and void: Bangs v. Dunn, 66 Cal. 72, 4 Pac. 963. A demand by a contractor against the owner of a lot for an assess- ment on his lot for a street isessment is assignable: Cochran v. Collins, 2P Cal. 129. The title to the assessment remains in the assignors: Foley v. Bullard, 99 Cal. 516, 33 Pac. 1081. 76 New Book of Forms. A cause of action arising out of tort is not assignable: Oliver v. Walsh, 6 Cal. 456. Assignability is the General Eule. — The exceptions are confined to ■wrongs done to the person, the reputation, or the feelings of the injured party, and to contracts of a purely personal nature: Rued v. Cooper, 109 Cal. 682, 34 Pae. 98. Burden of Obligation. — The burden of an obligation may be assigned with the consent of the party entitled to its benefits: Anderson v. De Urioste, 96 Cal. 404, 31 Pae. 266. How made — Validity. — Ad assignment aoes not release the assignor from his obligation if the ether contracting party does not consent: Cutting Packing Co. v. Packers' Exchange, 86 Cal. 574, 21 Am. St. Rep. 63, 25 Pae. 52, 10 L. R. A. 369. An account may be assigned by indorsement of the word "assignee" on the acpount, signed by the owner: Ryan v. Maddux, 6 Cal. 247. An order drawn by a creditor on his debtor is an assignment of the debt pro tanto, if accepted: McEwen v. Johnson, 7 Cal. 258. An order "F. Huth & Co., please hold to the order of William Pope & Sons, of Boston, five hundred pounds sterling of insurance, effected on cargo of bark Eloira, and oblige," is an equitable assignment of the funds in the hands, or to come into the hands, of the drawees to the payees: Pope v. Huth, 14 Cal. 403. Indorsement and delivery of a warrant by the payee is an equitable assignment of the debt: National Bank of D. 0. Mills v. Herold, 74 Cal. 603, 5 Am. St. Rep. 476, 16 Pae. 507. A grant of a portion of a tract of land of which the grantor has no title, but he has a contract of purchase, operates as an assignment of a portion of -^such contrnct: Hilton v. Young, 73 Cal. 196, 14 Pae. 684. Signing an assignment without deKvery is insufficient: Ritter v. Stevenson, 7 Cal. 388. An assignment of an account made to an attorney for collection as a matter of convenience, without solicitation or purchase by the attor- ney, is not affected by section 161 of Penal Code, which provides that an attorney who directly or indirectly buys, or is interested in buying, any evidence of debt with intent to bring suit thereon is guilty of misdemeanor: Tuller v. Arnold, 98 Cal. 522, 33 Pae. 445. It will not be assumed because an attorney brings an action on an assigned claim that he took the assignment with criminal intent: Bulke- ley V. Bank of California, 68 Cal. 80, 8 Pae. 643. Consideration for Assignment. — The assignment of a right is a valu- able consideration to support a promise to pay its reasonable value where the assignee obtains the benefit of such right: McCarthy v. Pope, 52 Cn]. .^61. The assignment of a contract void under the statute of frauds does not constitute a good consideration for a promise to pay: Mayer v. Child, 47 Cal. 142. Mortgage — Assign"^ ent of. — A mortgage is a conveyance only in form and is sometimes treated by the courts as a conveyance, but it passes no estate in the land described in it, and title to it passes by a simple assignment of the debt secured by it: Savings Soc. v. McKoon, 120 Cal. 177, 52 Pae. 305. Assignee's Rights. — The assignee of a promissory note is entitled to the security, if any: Gessner v. Palmateer, 89 Cal. 89, 24 Pae. 608, 26 Pae. 78D, 13 L. R. A. 187; Hart v. Wilson, 38 Cal. 263. Assignee stands in the shoes of his assignor; the assignor cannot by any act of his put his assignee in any better position than he him- self occupied: Wright v. Lew, 12 Cal. 2.57; Alpers v. Hunt, 86 Cal. 78, 21 Am. St. Rep. 17, 24 Pae. 846, 9 L. R. A, 483. Assign me;nt. 77 An assignee of a contract, in an action, is bonnd by all the provi- sions of the contract: Jackson v. Beers, 14 Cal. 189. The destruction of a document which operates as an assignment does not extinguish the assignee's rights unless the destruction was intended to extinguish such rights: Brock v. Pearson, 87 Cal. 581, 25 Pac. 963. Liabilities of Assignee. — An implied contract arises between the as- signor and assignee of a non-negotiable instrument, whereby the assignee becomes bound to the assignor to perform the contract according to its terms. The assignee of a contract for the purchase and sale of a crop of fruit refused to accept and pay for the crop. Held, that the as- signor had a cause of action against him for breach of the implied contract: Cutting Packing Co. v. Packers' Exchange, S6 Cal. 574, 21 Am. St. Rep. 63. 25 Pac. 52, 10 L. R. A. 369. Assign .ents for Collection. — An assignment of a cause of action for eolloctii>n vests the legal title in the assignee, regardless whether or not any consideration was ,iaid therefor by the assignee, and he maj sue in his own name: Grieg v. Riordan, 99 Cal. 316, 33 Pac. 913. In such case the defendant may urge any defense which he could have in- terposed against the beneficiary had the suit been brought in his own name: Toby v. Oregon Pacific R. R. Co., 98 Cal. 490, 33 Pac. 550. In such transactions the assignors could not sue thereon without a reas- signment: Tuller V. Arnold, ie in hand paid by S. T., the party of the second part, the receipt whereof is hereby acknowledged, do by these presents, sell unto the said party of the second part, his executors, administrators and assigns, the undizidcd one-half of one hundred acres of bar- ley, now grozuing on my ranch near the said toivn of Monterex, in said county of Monterey; also one roan horse, about ixteen hands high, hazing a zvhite spot on the face and one zvhiie f'^of, and the letter "B" branded on the left shoulder: also, eight hun- dred sheep nozu in my possession, on my place aforesaid, marked one slit in right ear and crop off the left ear. And / do for ;;jy heirs, exeaitors, administrators, covenant and agree, to and with the said party of the second part, his executors, administrators and assigns, to warrant and defend the sale of the said property, goods and chattels, unto the said party of the sec- ond part, his executors, administrators and assigns, against all and ever>^ person and persons whomsoever lawfully claiming or to claim the same. 94 New Book of Forms. No. 112. — Bill of Sale — Simple Fonru In consideration of tzvo hundred and fifty dollars, to me in hand paid by B. B., I do hereby sell and deliver to him my broncho horse, H. W. B., branded f. T. on the left hip. No. 113. — Bill of Sale — Another Form. Received of /. P., one thousand dollars, gold coin of the United States, in payment of Hve thousand fruit trees I have sold and delivered to him, this fourth day of May, 1906. What Included in. — A bill of sale of "all the goods and merchandise and property we own, have or have an interest in, in a store in Nevada, County of Nevada, formerly occupied by Bailey Gatzert, and now in the possession of the sheriff cf Nevada county, said goods forwarded to us, Bailey Gatzert, Nevada," contains a sufficient description of the goods: Coghill v. Boring, 15 Cal. 307; Glasmann v. O'Donnell, 6 Utah, 452. 24 Pac. 537. It is not, like a deed, inadmissible in evidence before proof of delivery: McFadden v. Mitchel, 61 Cal. 148. As between the parties to a bill of sale, delivery and continued change of possession of the thing sold is not necessary, and the purchaser may at any time, as long as it is in the possession of the vendor, recover the possession: Francisco v. Aguirre, 94 Cal. ISO, 29 Pac. 495. As between third parties generally, there must be an actual and con- tinued change of possession to protect the vendee against the creditwra of the vendor: C. C. P., see. 3440. BOND. No. 114. — Condition of a Bond on Paying a Lost Note. Whereas, the above-named C. C, by his promissory note dated the sd day of June, igof,, did promise to pay to W. B., or order, $1,000, one year after date, with interest at the rate of six per cent per year, payable annually ; and whereas the said IV. B. al- leges that said note was accidentally destroyed by fire on August 2> 1905; and whereas the said C. C. has on the day of the date hereof, at the request as well of the said W. B., and upon his, the said W. B.'s promising to indemnify the said C. C. and deliver up the said note to be canceled when found, paid the said W- B. the sum of $1,100, in full satisfaction and discharge of the said note, the receipt whereof the said W. B. doth hereby acknowl- edge : The condition therefore of the above-written obligation is such, that if the said W. B., his heirs, executors, or administra- tors, or any of them, do and shall from time to time, and at all times hereafter, save, defend, keep harmless and indemnified the Bond. 95 said C. C, his executors and administrators, from, and against t!ie said note of $i,ooo, and of and from all costs, chargies, damages and expenses that shall or may happen to arise therefrom, and also deliver or cause to be delivered up the said note, when and so soon as the same shall be found, to be canceled : Then this ob- ligation shall be void, otherwise, etc. Bonds and Like Instruments for the Payment of Money — Execution of Official Bonds. — A bond in form to bind both principal and sureties is joint; but if it is signed by the sureties and not l>y the principal, it is void. If the bond is joint and several in form, those signing .nre bound: City of Sacramento v. Punlap, 14 Cal. 421; cited, 2 Mont. 5G2; City of Los Angeles v. Melius, 59 Cal. 444. If a bond is executed and the name of the person in whose favor it runs is wrong, he may show that he was the person intended: Morgan v. Thrift, 2 Cal. 562. A bond tnken by an officer without authority is void: Benedict v. Bray, 2 Cal. 251, 56 Am. Dec. 332. A bond not made in consideration of a good consideration is void: Mulford v. Estudillo, 17 Cal. 618; cited, 13 Nev. 212. A bond executed to a sheriff who has attached property exempt from execution is void for want of considera- tion: Servanti v. Lusk, 43 Cal. 238. When the law required joint and several bonds, and an officer gave a joint bond, held that his sureties could not complain because the bond was less burdensome than the law required: Tevis v. Randall, 6 Cal. 632, 65 Am. Dec. 547. A statute required official bonds to be made to "the people of the state of California." A bond to "the state of California" held to be good: Id.; cited, 1 Idaho, 357. The words, "That they [the sureties] are worth the amount for which they become liable over and above all their just debts and liabilities" mean the same as the words "over all their debts," etc: People v. Dorsey, 28 Cal. 21. No. 115. — Bond, Penal (or Without Penalty) for the Payment of Money. Know all Men by these Presents: That 7, IV. B., do owe unto /. F., the sum of $10,000 to be paid unto the said /. F., his executors, administrators, or assigns, on the ?af day of June, IQ06, next ensuing the date hereof ; for which payment, well and truly to be made, I bind myself, my heirs, executors, and adminis- trators (in the sum of $TO.ooo), firmly by these presents. In witness whereof. I have hereunto set my hand and seal this jd day of June, 1905. No. 116. — A Bond of Credit (Letter of Credit). This present writing witnesseth, that I, R. C. of S., banker, do undertake with /. F. of S., merchant, his executors, and adminis- trators, that if he deliver unto E. F., of S., or any of his assigns to his use, any sum or sums of money, amounting to the sum of $10,000, or under, and shall take in my name, a bill under the hand and seal of the said £. F., containing and showing the cer- t-^intv thereof: that then /, my exeaitors or administrators, hav- ing the same bill delivered to me or them, shall immediately upon 96 New Book of Forms. the receipt of the same, pay, or cause to be paid unto the said /. F., his executors, administrators, or assigns, all such sums of money as shall be contained in the said bill; for which payment in manner and form aforesaid well and truly to be made, I bind myself, my executors and administrators, by these presents. No. 117. — Bond to Convey an Estate at a Time to Come, Free from Encumbrances, and in the Meantime, that the Obligee Shall Receive the Profits. The condition of this obligation is such, that if the above-bound A. B. do and shall, upon and at the request of the said C. D., hii heirs or assigns, on or before the jfi day of June next ensuing the date above written, convey and assure, or cause to be well and sufficiently conveyed and assured, unto the said C. D., his heirs and assigns, or to such other person and persons and his and their heirs, as the said C. D. shall nominate and appoint, and to such uses as he shall direct, that property described as follows : [description] now in the possession of E. f., by such conveyances and assurances in the law, as by the said C. D. or his heirs, or his or their counsel learned in the law, shall be reasonably devised or advised, and required, freed and discharged, of and from all en- cumbrances whatsoever, except, etc. And also if the said A. B., his, etc., or either of them, do and shall until such conveyance and assurance be made and executed as aforesaid, p^^rmit and suffer the said C. D., his heirs and assigns, peaceably and quietly to have, receive, and take to his and their own proper use and uses, the rents, issues, and profits of all and singular the premises, and every part and parcel thereof, without any manner of let, suit, trouble, disturbance, hindrance, or denial of the said A. B., his, etc., or any of them, or of any other person or persons whatsoever bv his or their, or any of their, means, right, title, or procure- ment, then, etc., or else, etc. No. 118. — Bond to Permit a Wife to Live Separate from Her Husband, Given to a Third Person on the Wife's Behalf. Whereas A. B., the wife of the above-bounden C. B., now lives separate and apart from her said husband, and follows the busi- ness and employment of making and selling, etc., and the said C. B. hath agreed that his said wife shall have and receive all benefit arising thereby, or by any other trade or business which she may think fit to follow, for her own separate use and support, wherewith he, the said C. B., is not to intermeddle, or have any profit or advantage therefrom, so as she the said A. B. doth not and shall not, contract any debt or debts, for which the person or effects of her said husband shall or may be sued, charged, or encumbered by any means whatsoever ; Now, the condition of this Bond. 97 obligation is such, that if the said C. B. do and shall, from time to time, and at all times, during the natural life of the said A. B., permit and suffer her, the said A. B., to live separate annd apart from him, and to have and receive all profit, benefit, and advan- tage arising, or which shall arise, from her said trade or business of making and selling, etc., or any other trade or business which she shall follow or employ herself in, to and for her own separate use, support, and maintenance, without any account, suit, trouble, or molestation whatsoever, and without doing, or causing or per- mitting to be done, any act, matter or thing whatsoever, whereby or wherewith the said A. B. shall or may be molested or encum- bered by any means whatsoever; and also, if the said C. B., his heirs, executors or administrators, or his or their goods or chat- tels, lands or tenements, shall at any time or times hereafter, be sued, attached, or otherwise charged, or encumbered for or by reason or means of any debt or debts which his said wife hath contracted, then this obligation to be and remain in full force and effect, etc. No. 119. — Condition of a Bond that a Person When of Age Will Convey Land. Now the condition of this obligation is such, that if the said R. S. do and shall, when and as soon as he shall have attained the said age of t-wenty-one years, at the costs and charges of the said /. G., convey and assure unto the said /. G., his heirs and as- signs, by such deeds and conveyances as the counsel of the said /. G. shall advise, his undivided moiety or half part of and in the said lands and tenement and premises, devised to him and the said G. S., as aforesaid, and that without any consideration to be paid him by the said /. G. for so doing; and also if, and in case the said R. R., his heirs, excaitors or administrators, do and shall in the meantime, and until the said R. S. shall have executed such conveyances as aforesaid, save, defend, keep harmless and indem- nified the said /. G., his heirs, executors, and administrators, and his and their goods and chattels, lands and tenements, and prem- ises, to be conveyed by the said R. S. to the said /. G. as aforesaid and the rents, issues and profits thereof, of and from all claims and demands to be made thereto by, or on the part and behalf of the said R. S. Then, etc. No. 120. — Bond Conditioned to Keep a Person During Life. The condition of this obligation is such, that whereas the above- bound A. B., for and in consideration of the sum of $1,000, to him in hand paid by the above-named C. D., hath agreed and undertaken to keep and maintain the said C. D. during his life; if. therefore, the said A. B., his executors or administrators, shall from time to time, and at all times hereafter during the natural New Forma — 7 98 New Book of Forms. life of the said C. D., well and sufficiently maintain and keep, or cause to be well and sufficiently maintained and kept, the said C. D. in the house of him the said A. B., with meat, drink, clothes, and all other things necessary and convenient; then, etc., or else etc. 4 No. 121. — Bond to Indemnify One that Indorsed a Promissory Note for Another. Know all, etc. : Whereas, the above-bound A., by bill or note under his hand, dated the etc., hath promised to pay unto C, or order, six months after date, the sum of $1,000, with interest thereon till paid ; and whereas the above-named B., at the request and for the only debt of the said A., hath indorsed the said re- cited bill or note, and is thereby become chargeable, with and for payment of the said sum of $1,212. fio, and interest, at the time therein mentioned, as by the said bill and the indorsement there- upon may appear; Now the condition, etc., that if the said A., his executors and administrators, do and shall, well and truly pav the said sum of $2,212. '^o, for which the said note is so given, and the interest thereof added on the day of payment therein men- tioned and in full discharge thereof, and thereof and therefrom, and from all actions, suits, charges, payment and damages by rea- son thereof, shall and do, at all times, well and sufficiently save harmless, and keep indemnified the said B., his heirs, executors, and administrators, and every of them ; then, etc. No. 122. — Bond Given by a Master of a Ship, to Deliver Up the Ship to the Ov/ners on Demand. Know all Men, etc.: Whereas, the above-named C. D. [the obligee] and the rest of the part owners of the ship Julius, have employed the above-bound A. B. as master of the same, for so long a time as they, or the major part of them, shall think fit, and have thereupon delivered the possession of the said ship, with her appurtenances to the said A. B. Now the condition of this obli- gation is such, that if the said A. B., after notice and demand, shall quietly deliver up the actual possession of the said ship unto the said C. D., or unto such other person as the said part owners or the major part of them, shall appoint, together with all and sin- gular, the furniture, tackle, apparel and appurtenances to the said ship belonging (reasonable wear and tear excepted), freed from all charges and encumbrances done or suffered by the said A. B. Then etc.; otherwise, etc. No. 123. — Bond to Save Harmless from Paying Rent, Where the Title is in Questioru The condition, etc., that whereas there is a suit depending be- tween the above-bound R. C. and others, touching the right and Bond. 99 interest in the now dwelling-house of the above-named /. F., situate etc., and whereas the said /. F. hath agreed to pay a rent of the said house to the said R. C, which is, to pay the sum of $iy200, yearly, as the same shall grow due: If therefore the said R. C, his etc., do and shall, well and truly pay, or cause to be paid, unto the said /. F., his executors, administrators, or assigns, all such rent, sum and sums of money, charges and damages whatsoever, as shall, by due proceedings in law, be adjudged or decreed against him the said /. F., his etc., and all other costs and damages whatsoever, which he the said /. F. shall sustain, or be at, by reason of any action, suit or forfeiture whatsoever which shall or may happen, or be to the said /. F., his executors, ad- ministrators, or assigns, by reason of paying the said rent, or any part thereof, to the said R. C, his executors, administrators, or assigns, then etc. No. 124. — Bond Given by One to Another to Indemnify Him for Any Damage that may Arise from Carrying on Busi- ness in His Name, etc. Know ali. Men, etc.: Whereas the above-named A. B. [the obligee] at the request of the above-bound C. D., hath consented, that during the term of three years from the date hereof, he the said C. D. may use the name of the said A. B. in carrying on the business of hotel-keeper (which he now exerciseth for his own profit, and not for the advantage or the account of the said A. B., but only to preserve the said business to himself, the said A. B. having wholly left off and discontinued the same), which the said A. B. hath permitted him to use for the said term, so that he the said A. B. may be indemnified against all damages, by reason of the said trade, or his using his name therein. Now, therefore, the condition of this obligation is such, that, if the said C. D., his executors and administrators, shall and do, indemnify and save harmless the said A. B., his executors and administrators, of and from all manner of damages, charges, and expenses, which he or they may sustain or be put to, by reason of the said C. D.'s so using the name of the said A. B. as aforesaid, or by reason of any- thing relating thereto ; then the above obligation, etc. No. 125. — Bond to Replace Stock Loaned. Know all Mkn, etc.: Whereas the above-named A. B. has this day borrowed of C. D. one hundred shares of the capital stock of the B. F. Company, a corporation: Now, the condition of this obligation is such that if the above A. B. shall transfer or cause to be transferred to the said C. D. the like number of shares of the said capital stock, on or before January ?, /pod, and will from time to time pay said C. D. all dividends disclosed upon said stock, loo New Book of Forms. with interest thereon at the rate of ten per cent per year from the date when said dividends were payable, then, etc. No, 126. — Bond Given to One Bound for the Obligor in a Bond for the Performance of Covenants, Know all, etc. Whereas, etc. [recite the bond given by the obligee] conditioned for the true performing-, observing, ful- filhng and keeping, of all and every the covenants, grants, articles, clauses, paymenuts and agreements, which are contained and spec- ified in one pair of indentures, etc., as by the said obligation and condition thereof may more fully appear : Now the condition, etc., that if the said C. D., his etc., and every of them, do and shall, from time to time, and at all times hereafter, well and sufficiently save and keep harmless and indemnified, the said A. B., his etc., and every of them, from all costs and damages, which he or they may be put unto, for, by reason, or on account of the said recited obligation, or any sum or sums of money therein contained; then etc., or else etc. No. 127. — Bond for the Performance of Covenants. The condition of the above obligation is such, that if the above- named A, B., his heirs, executors and administrators, do and shall well and truly observe, perform and keep all and every the cove- nants specified and contained in a certain indenture of etc., bear- ing even date with the above obligation and made between, etc., which on the part and behalf of the said A. B., his heirs, execu- tors and administrators, is, are, and ought to be observed, per- formed, fulfilled and kept, according to the true intent and mean- ing of the same indenture ; then the above written obligation shall be void ; otherwise etc. No. 128. — Common Conditions of Arbitration Bonds. The condition, etc., that if the above-bounden A. B., his execu- tors and administrators, shall for his and their part, in and by all things, well and truly observe, perform, and keep the award and determination of C. D., E. f. [if more than two, say G. H., or any two of them], arbitrators, indifferently chosen by the said A. B. and /. K., to arbitrate, and award concerning all manner of action and actions, cause and causes of action, suits, bills, bonds, specialties, covenants, contracts, promises, accounts, reckonings, sums of money, judgments, executions, extents, quarrels, contro- versies trespasses, damages, and demands, whatsoever, both in law and in equity, at any time hereafter had, moved, brought, com- menced, sued, prosecuted, done, suffered, or committed by or be- tween the said parties, so as the award of the said arbitrators [or Bond. ioi any hvo of them], be made and set down in writint:^, indented un- der their hands and seals \or the hands and seals of any two of theiu], ready to be deHvered to the said parties in difference, on or before June 3, IQ03,, then this obhgation shall be void; other- wise of full force and virtue. No. 129. — Bond — Official. Know all J^Ikn bv these Presents; That we, S. S. M., as principal, and F. D. A., G. H. K., J. T. D., R. S. £., S. M. M., and B. G. L., as sureties, are held and firmly bound unto the state of California in the following penal sums, to wit: The said princi- pal in the penal sum of fifty thousand dollars, and the said sure- ties in the following penal sums, to wit : the said F. D. A. in the penal sum of ten thousand (10,000) dollars ; the said G. H. K. in the penal sum of tii'C thousand (5,000) dollars ; the said /. T. D. in the penal sum of tire thousand (5,000) dollars; the said R. S. E. in the penal sum of ten thousand (10.000) dollars ; the said S. M. M. in the penal sum of ten thousand (10,000) dollars ; the said B. G. L. in the penal sum of ten thousand (10,000) dollars ; for the payment of which, well and truly to be made, we bind our- selves, our heirs, executors, and administrators, jointly and sever- ally, firmly by these presents. Sealed with our seals and dated this fourth day of February, IQ05. The condition of the above obligation is such, that, whereas the above-bound principal, S. S. M., was, at a general election held in this state on the tenth day of September, 1905, duly elected to the office of county treasurer, in and for San Mateo county and state aforesaid. Now, therefore, the condition of this obligation is such, that if the said S. S. M. shall well, truly, and faithfully perform all oflficial duties now required of him by law, and shall well, truly, and faith- fully execute and perform all the duties of such office of county treasurer required by any law to be enacted subsequently to the execution of this bond, then this obligation is to be void and of no effect ; otherwise, to remain in full force and effect. No. 130. — Bond for Deed. Know all Men by these Presents: That we, 7. N. IV., as principal, and J. A. M. and IV. P., as sureties, all of the city and county of San Francisco, are held and firmly bound unto JV- S., of the same place, in the sum of ten thousand five hundred dollars gold coin of the United States of America, to be paid to the said W. S., his executors, administrators or assigns ; for which pay- ment, well and truly to be made, we bind ourselves, our heirs, ex- ecutors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated the twentieth day of December, one thousand nine hundred and four. 102 New Book of Forms. The condition of the above obhgation is such, that if the above- bounden obHgor shall, on the twentieth day of March, 1904, make, execute and deliver unto the said W. S., or to his assigns (pro- vided that the said ►S'. shall, on or before that day, have paid to the said obligor the sum of ten thousand five hundred dollars, gold, coin of the United States of America, the price by said S. agreed to be paid therefor), a good and sufficient deed for conveying and assuring to the said W. S., free from all encumbrances, all his right, title, and interest, estate, claim, and demand both in law and equity as well in possession as in expectancy, of, in, or to that cer- tain portion, claim, and mining right, title, or property on that certain vein or lode of rock containing precious metals of gold, silver, and other minerals, and situated in the Big Cottomvood Mining District, county of Utah, and Territory of Utah, and de- scribed as follows, to wit : Commencing on the east or right bank of Big Cottonwood Canyon, as yoti ascend said canyon, distant southeasterly one hundred and fifty rods from Mill "A," thence southeasterly two thousand feet, and running parallel zvith and distant two hundred (200) feet easterly from that mining claim designated and known by the name of "Dolly Varden" — then this obligation to be void; otherwise, to remain in full force and vir- tue. No. 131. — Bond. Know all Men by these Presents: That we, /. D., of the county of Nevada, state of California, as principal, and R. R. and J. S., as sureties, are held and firmly bound unto /. P., of said county, in the sum of twenty-three hundred and fifty dollars, geld coin of the United States of America, to be paid to the said /. P., his executors, administrators, or assigns ; for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the twenty-third day of Decem- ber, 1^04. The condition of the above obligation is such, that if the abovc- hounden J. D., his heirs, executors, or administrators, shall well and truly pay, or cause to be paid, in gold coin of the United States of America, unto the said J. P., his executors, administra- tors, or assigns, the just and full sum of two thousand (2,000) dollars, in gold coin of the United States, in six months from the date hereof, with interest thereon at the rate of one and one- fourth per cent per month — then the above obligation to be void; other- wise, to remain in full force and virtue. No. 132. — Bottomry Bond. Know aix Men by these Presents: That I, A. B., master and one-third owner of the ship L., for myself and P. C, who owns the other twcHiiirds of said ship, am held and firmly bound Bond, 103 unto A. F., in the penal sum of one thousand dollars, lawful money, for the payment of which to the said A. F., his heirs, ex- ecutors, administrators, or assigns, I hereby bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal. Dated the second day of June, ipo§. . Whereas, the above-bounden A. B. hath taken up and received of the said A. F. the just and full sum of one thousand dollars, which sum is to run at respondentia, on the block and freight of the said L., whereof the said A. B. is now master from the port of S. F. on a voyage to the port of N. Y., having permission to touch, stay at, and proceed to and call at, all ports and places within the limits of the voyage, at the rate of premium at twelve per cent for the voyage. In consideration whereof, usual risks of the sea, rivers, enemies, fires, pirates, etc., are to be on account of the said A. F. And for further security of the said A. F., the said A. B. doth, by these presents, mortgage and assign over to the said A. F., his heirs, exeaitors, administrators, and assigns, the said ship L. and her freight, together with all her tackle, ap- parel, etc. And it is hereby declared, that the said ship L. and her freight is thus assigned over for the security of the respondentia taken up by the said A. F., and shall be delivered to no other use or purpose whatever, until payment of this bond is first made, with the premium tliat ma} become due thereon. Now, therefore, the condition of this obligation is such, that if the above-bounden A. B., his heirs, exeaitors, or administrators, shall and do well and truly pay, or cause to be paid, unto the said A. F., or to his attorneys legally authorized to receive the same, his or their executors, administrators, or assigns, the just and full sum of one thousand dollars, being the principal of this bond, to- gether with the premium which shall become due thereon, at or before the expiration of twenty days after the arrival of the ship L. at the port of N. V.; or, in case of the loss of the said ship, such an average as by custom shall have become due on the sal- vage — then this obligation is to be void; otherwise, to remain in full force and virtue. Having signed to three bonds of the same tenor and date, the one of which being accomplished, the other two to be void and of no effect. No. 133. — Bond — Another Form. Know all Men by these Presents: That /. D. and R. R. of Nipoma, county of San Luis Obispo, state of California, are held and firmly bound imto C. IV. D., of the same place, in the sum of one th-oiisand five hundred dollars, gold coin of the United States of America, to be paid to tlie said C W. D., his executors, ad- ministrators, or assigns ; for which pavment well and trulv to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, and firmly by these presents. I04 New Book oe Forms. Sealed with our seals and dated the tzventieth day of May, 1^04. The condition of the above obligation is such, that if the above- bounden /. D. and R. R., or either of them, their or either of their heirs, executors or administrators, shall well and truly pay, or cause to be paid, in gold coin of the United States, unto the said C. W. D., his executors, administrators, or assigns, the sum of five hundred and fifty (550) dollars, on or before the seventh day of March, IQ04, together with interest thereon at the rate of one and one-fourth (i 1-4) per cent per month, payable monthly, on the seventh day of each and every month — then the above ob- ligation to be void ; otherwise, to remain in full force and virtue. And it is hereby expressly agreed, that should any default be made in the payment of said interest, or of any part thereof, on any day whereon the same is made payable as above expressed, and should the same remain unpaid and in arrears for the space of ten (10) days, then and from thenceforth — that is to say, af- ter lapse of the said ten (10) days — the said principal sum of five hundred and fifty dollars, gold coin of the United States, with all arrearages of interest thereon, shall, at the option of the said D., his executors, administrators, or assigns, become and be due and payable immediately thereafter, although the period first above limited for the payment thereof may not then have expired, any- thing hereinbefore contained to the contrary thereof in anywise notwithstanding. No. 134. — Bond, with Warrant of Attorney, to Confess Jndg- ment. Know all Men, etc. [as in common bond, and then add:'\ the just and full sum of one thousand dollars, on demand, then the above obligation to be void ; else to remain in full force and vir- tue. Whereas I, A. B., of etc., am held and firmly bound unto A. C, of etc., by a certain bond or obligation of this date, in the penal sum of one thousand dollars, conditioned for the payment of five hundred dollars, on demand; Now, therefore,! do authorize and empower anv attorney in any court of record in the state of Cali- fornia to appear for me at the suit of the said obligee or his rep- resentatives, in an action of debt, and confess judgfment against me upon the said bond or obligation, or for so much money bor- rowed, of anv term or vacation of term, antecedent or subsequent to this date ; and to release to the said obligee all errors that may intervene in obtaining such judgment, or in issuing execution on the same. No. 135. — Bond Waiving Performance upon Certain Contin- gencies to be Indorsed on a Contract. Know all Men, etc. [as in common bond:] The condition of this obligation is such that if the above-bounden A. B. dies before Bond. 105 material is delivered on the ground of the value of $1,000, then this contract shall be void. No. 136. — Bond for Performance, to be Indorsed on a Con- tract or Agreement. Know all Mkn, etc. [as in common bond] The condition of this obligation is such, that if the above-bounden A. B., his execu- tors, administrators, or assigns, shall, in all things, stand to and abide by, and well and truly keep and perform, the covenants, conditions, and agreements in the within instrument contained, on his or their part to be kept and performed, at the time and in the manner and form therein specified — then the above obligation shall be void; otherwise, to remain in full force and virtue. No. 137. — Bond to Produce Bill of Lading. Know all Men by these Presents : That we, A. B. and C. D., composing the firm of D. B. & Co., and B. F. and G. H., of the city and county of San Francisco, and state of California, are held and firmly bound, unto the owners, masters, and consignees of the ship L. in the penal sum of one thousand dollars, to be paid unto the said owners, master, or consignees, their executors, administrators, or assigns ; to which payment, well and truly to be made, we do bind ourselves, our heirs, executors, and adminis- trators, firmly by these presents. The condition of this obligation is such, that whereas, B. D. & Co. claim to be true and lawful consignees of certain goods, wares and merchandise, now on board the ship L., of which they hold no valid bill of lading: Now, in consideration of the dcliverv of said goods to the said B. D. & Co. by L. X. & Co., the consignees of said ship L., without presentation of bill of lading, we, the undersigned, hereby agree to furnish to the said consignees of said ship, within ten days from the date hereof, a proper bill of lading of said goods, duly filled up to the order of said B. D. & Co.; or in default of furnishing such bill of lading, we hereby agree to hold the said owners, master, and consignees, of said ship harmless against the claims for the delivery of any party or parties whatsoever, and bind ourselves to pay to the said owners, master, or consignees, all loss or damage which they may be called upon to pay in consequence of such delivery of said goods to said B. D. & Co. Now, if the said B. D. & Co. do well and truly fulfill the condi- tions of the above agreement, then this obligation is to be void and of no effect; otherwise, to remain and be in full force and virtue. io6 New Book of Forms, No. 138. — Legatees' Bonds. Know all Men by these Presents: That we, A. B., princi- pal, and C. D. and E. F., of etc., are held and firmly bound unto A. L. and P. C, of etc., executors of the last will and testament of W. B., deceased, late of the town of D., in the sum of one thou- sand dollars, lawful money of the United States, to be paid to the said A. L. and P. C, executors, as aforesaid, the survivor or sur- vivors, or his or their assigns ; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, execu- tors, administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the second day of January, IQ04. Whereas, in and by the last will and testament of the said W. B., deceased, a legacy of one thousand dollars is bequeathed to the said A. B., which has been paid to him by the said executors as aforesaid. Now, the condition of this obligation is such, that if any debts against the deceased above named shall duly appear, and which there shall be no other assets to pay, and if there shall be no other assets to pay other legacies, or not sufficient, then the said A. B. shall refund the legacy so paid, or such ratable proportion thereof, with the other legatees of the deceased, as may be necessary for the payment of such debts and the proportional parts of other legacies, if there be any, and the costs and charges incurred by reason of the payment of the said one thousand dollars ; and that if the probate of the will of the said deceased be revoked or the will declared void, then the said A. B. shall refund the whole of the legacy, with interest, to the said A. L, and P. C, their execu- tors, administrators or assigns. Isjo. 139. — Bond Conditioned if Interest not Paid within a Certain Time Whole Sum Due, Know ale Men by these Presents: That I, A. B., of the city of A., in the county of B., and state of C, am held and firmly bound unto A. P., of the same place, in the sum of one thousand dollars, lawful money of the United States, to be paid to the said A. P., his executors, administrators, or assigns, for which pay- ment well and truly to be made, I bind myself, my heirs, execu- tors and administrators, and every of them, firmly by these pres- ents. Sealed with my seal. Dated the second day of May, IQ04. The condition of the above obligation is such, that if the above- bounden A. B., or his heirs, executors and administrators, shall well and truly pay, or cause to be paid, unto the above-named A. P., his executors, administrators or assigns, the just and full sum of one thousand dollars, on the second day of January, which will be in the year one thousand nine hundred and four, and Bond. 107 the interest thereon, to be computed from the date hereof, at and after the rate of tzvehe per cent per annum, and to be paid ycarlv — then the above obHgation to be void ; else to remain in full force and virtue. And it is hereby expressly agreed, that should any default be made in the payment of the said interest, or of any part thereof, en any day whereon the same is made payable, as above ex- pressed, and should the same remain unpaid and in arrear for the space of thirty days, then and from thenceforth — that is to sav, after the lapse of the said thirty days — the aforesaid principal sum of one thousand dollars, together with all arrearage of interest thereon, shall, at the option of the said A. P., his executors, ad- ministrators, and assigns, become and be due and payable imme- diately thereafter, although the period above limited for the pay- ment thereof may not then have expired, anything hereinbefore contained to the contrary thereof, notwithstanding. No. 140. — Bond for Faithful Performance of Clerk. Know all Men by these Presents: That we, /. S. and /. D., of Troy, Ohio, are held and firmly bound unto R. R., of Troy, Ohio, in the sum of one thousand dollars, to be paid to the said R. R., his executors, administrators, or assigns; for which pay- ment, well and truly to be made, we bind ourselves, our heirs, ex- ecutors, and administrators firmly by these presents. Sealed with our seals. Dated the first day of January, TQ04. The condition of the above obligation is such, that, whereas the said R. R. has employed the said /. S. as a clerk in his busi- ness of banker: Now, if the said /. S. shall well and faithfullv discharge his duties as such clerk, and shall also account for all moneys and property, and other things, which may come into his possession or under his control as such clerk — then the above obligation to be void ; otherwise to remain in full force and virtue. No. 141. — Bond of Treasurer or Trustee, Know all Men by these Presents: That we, /. £>., as prin- cipal, and R. R. and /. S., as sureties, all of the ciiy and countv of San Francisco, State of California, are held and firmly bound unto H. H. and T. S., both of the said city and county, in the sum of one thousand dollars, gold coin of the United States, to be paid unto the said H. H. and T. S., or their successors in oflSce, or their certain attorneys, executors, administrators, or assigns; to which payment, well and tndy to be made, we jointly and sev- erally bind ourselves, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, and dated the twenty-fifth day of De- cember, 1904. io8 New Book of Forms. The condition of this oblif^ation is such, that whereas the above-named /. D. has been chosen by an association, known as the Union League, treasurer [or, one of the trustees^ of said as- sociation by reason whereof and as such treasurer [or trustee], he will receive into his hands and possession divers sums of money, goods, and chattels, and other things, the property of said association ; and is bound to keep true and accurate accounts of said property, and of his receipts and disbursements for and on account of said association. Now, therefore, if the said /. D. shall well and truly perform all and singular the duties of treasurer [or trustee] of said asso- ciation, for and during his official term, and until he shall de- liver all the property which he may receive as such treasurer [or trustee] to his successor in said office, or to such other person as the said association, or its authorized officers, may direct, ac- cording to the provisions of the constitution, by-laws, rules, and regulations of said association now existing, or which may be by said association adopted ; and shall keep true and just accounts of all property belonging to the said association that may come to his hands ; and shall exhibit and submit to the said associa- tion, or to the persons by them thereunto appointed, his said accounts, and the vouchers therefor, whenever he shall be thereto properly requested ; and shall, at the expiration of his term of office, by any cause whatever, deliver up to his successor in office all the property of the said association that may be found to re- main in his hands, and his books of accounts, and the vouchers thereunto belonging — then this obligation shall be null and void ; otherwise, to remain in full force and virtue. No. 142. — Bond of Indemnity. Know all Men by these Presents: That I, C. V., of the city of New York, in the state of New York, am held and firmly bound unto A. D., of the city of San Francisco, in the state of California, in the sum of five thousand two hundred and seventy- Hve dollars, gold coin of the United States of America, to be paid to the said A. D., his executors, administrators, or assigns, for which payment, well and truly to be made, I bind myself, my heirs, executors and administrators, firmly by these presents. Sealed with my seal. Dated the tenth day of January, ipo4. Whereas, heretofore, one F. B. M. filed his bill in the district court of the United States for the northern district of California, against the steamship C, upon cause of action alleged to have accrued to him in the early part of the year i8go; and whereas, such proceedings were afterward had in said cause, in said court, that a judgment or decree was made and entered therein, on the fifteenth day of December, 1^04, that the said M. do have and re- cover in said action the sum of two thousand four hundred and Bond. 109 fifty-nine dollars, for liis damap^es therein, and also the sum of one hundred and sez'enty-one dollars and fifty cents, for his costs of said action, and that the said steamship be condemned and sold to satisfy liim for his said damages and costs; and whereas, at the time when said alleged cause of action accrued, the above- bounden obligor was the mortgagee and owner of the said steam- ship, and liable ever for the payment of such damages and costs ; and whereas, an appeal has been taken from the said judgment or decree to the sitpre)iie court of the Unit'cd States; and whereas, the said above boundcn obligor has applied to the above-named obligee to become one of the sureties in the stipulation to be given on the said appeal, to stay the execution of said decree, and abide the judgment and decree of the appellate court ; and whereas, the said obligee has consented to become such surety, upon being indemnified against all loss or damage by reason thereof, and has executed and acknowledged the necessary stipulations on such appeal. Now, the condition of this obligation is such, that if the said obligor, the said C. V ., or his heirs, executors, and administrators, shall and do, at all times hereafter, well and truly, save and keep the said obligee, A. D., his executors and administrators, harm- less of and from all actions, costs, damages, and counsel fees, of and from, and by reason of, or growing out of, such suretyship, and shall well and truly repay, or cause to be repaid, to the said obligee, his executors or administrators, on demand, any and all such sum and sums of money that he may be required to pay as such surety, as aforesaid, then this obligation to be void; else to remain in full force and virtue. No. 143. — Bond of Indemnity to Surety. Know all Men, etc. : Whereas, the said C. D., at the special instance and request of the above-bounden A. B., has bound him- self, together with the said A. B., unto one £. F., of, etc., in a certain obligation, bearing even date herewith, in the penal sum of one thousand dollars, gold coin of the United States, condi- tioned for the payment, in like gold coin, of the sum of five hun- dred dollars, due and owing by the said A. B. to the said E. F. on, etc. [as in the bond; or, if a bail bond be referred to, say — conditioned for the appearance of the said A. B., etc.] ; Now, therefore, the condition of the above obligation is such, that if the said A. B. shall well and truly perform and fulfill the condition of the said bond executed to the said E. F., in manner and form as he is therein required to do, and at all times here- after save harmless the said C. D., his heirs, executors, and ad- ministrators, of and from the said obligation, and of and from all actions, costs and damages, for or by reason thereof, then this obligation to be void ; else to remain in full force and virtue. no New Book of Forms. No. 144. — Notary's Bond. Know all Men by these Presents : That we, R. H., as prin" cipal, and C. K., E. S., and G. H., as sureties, all of the city of San Francisco, state of California, the said S. S. in the sum of £re thousand dollars, and the said sureties in the following named sums, viz. : C. K., for Hve thousand dollars, and B. S. and G. H. for the sum of tiventy-Uve hundred dollars each, making in the aggregate the whole penal sum of five thousand dollars, lawful money of the United States, to be paid to the said state of Cali- fornia; for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this twenty-sixth day of March, 1904. The condition of the above obligation is such, that whereas, G. C. P., governor of California, has appointed and commissioned the above-bounden R. H., a notary public in and for the city and county of San Francisco, by commission dated the third day of March, 1905; Now, therefore, if the said R. H. shall well and truly perform the duties of a notary public, as aforesaid, during his incumbency of said office under and by virtue of the commis- sion aforesaid, according to law, and shall faithfully discharge all duties which may be required of him by any law enacted subse- quently to the execution of this bond, then this obligation shall become void ; otherv/ise, to remain in full force and effect. No. 145. — Indemnity Bond on Attachment. Know ale Men by thes:e Presents : That we, G. B., as prin- cipal, and S. D. and D. S., as sureties, are held and firmly bound unto P. H., sheriff of the city and county of San Francisco, state of California, in the sum of five thousand five hundred and fifty dollars, gold coin of the United States of America, to be paid to the said sheriff, or his certain attorney, executors, administra- tors or assigns, for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the tzventy-sixth day of January, 1^)04. Whereas, under and by virtue of a writ of attachment, issued out of the superior court of the city and county of San Francisco, in an action wherein the said G. B. is plaintiff, and /. R. S. and B. H., defendants, against said defendants, directed and delivered to said P. H., sheriff of the city and county of San Francisco, the said sheriff was commanded to attach and safely keep all the prop- erty of said defendants within this county, not exempt from ex- ecution, or so much thereof as may be sufficient to satisfy ttie Bond. i i i plaintiff's demand, amounting to two thousand five hundred and sixty-six dollars and forty-five cents, United States gold coin, as therein stated, and the said sheriff did thereupon attach the fol- lowing described goods and chattels, viz. : [Here ijisert descrip- tion. ] And whereas, upon the taking of the said goods and chattels, by virtue of the said writ, one N. B. claimed the said goods and chattels as his own property. And whereas the said plaintiff, notwithstanding such claiming, requires of said sheriff tliat he shall retain said property under such attachment and in his custody. Now, therefore, the condition of this obligation is such, that if the said G. B., S. D., and D. S., their heirs, executors, and ad- ministrators, or either of them, shall well and truly indemnify and save harmless the said sheriff, his heirs, exeaitors, ,and ad- ministrators, of and from all damages, expenses, costs and charges, and against all loss and liability which he, the said sheriff, his heirs, executors, or administrators, shall sustain, or in anywise be put to, for or by reason of the attachment, seizing, levying, taking, or retention by the said sheriff, in his custody, under said attachment, of the said property claimed as aforesaid, then the above obligation to be void ; otherwise, to remain in full force and virtue. No. 146. — Indemnity Bond on Execution. Know all Micn by thesb Presents: That we, G. B., of the city atid county of San Francisco, as principal, and S. D., and D. S., of said city and county, as sureties, are held and firmly bound unto P. J., sheriff of the city and county of San Fran- cisco, state of CaJiforniu, in the sum of two thousand eight hun- dred and fifty dollars, gold coin of the United States of America, to be paid to said sheriff, or his certain attorney, executors, ad- ministrators, or assigns, for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administra- tors, jointly and severally, firmly by these presents. Sealed with our seals, and dated the sixteenth day of October, 1904. Whereas, under and by virtue of a writ of exeaition, issued out of the superior court of the city and county of San Francisco, state of Californi-a, in an action wherein the said G. B. is plaintiff, and /. R. S. and E. H., defendants, against said defendants, di- rected and delivered to said P. J. W., sheriff of the city and county of San Francisco, state of California, the said sheriff was commanded to satisfy the judgment in United States gold coin. with interest, out of the personal property of such defendants within his county not exempt from execution, and if sufficient personal property could not be found, then out of the real prop- 112 New Book op Forms. erty belonging to them, or cither of them, said defendants, on the day when the said judgment was docketed, or at any time subse- quently ; the said sheriff did thereupon levy upon and take into his possession the following described goods and chattels : [De- scription.] And whereas, upon the taking of the said goods and chattels by virtue of the said writ, one N. B., of said city and county, claimed the said goods and chattels as his own property. And whereas, the said plaintiff, notwithstanding such claming, requires of said sheriff that he shall retain said property under such levy and in his custody. Now, therefore, the condition of this obligation is such, that if the said G. B., S. D., and D. S., their heirs, executors, and ad- ministrators, or either of them, shall well and truly indemnify and save harmless the said sheriff, his heirs, executors, adminis- trators, and assigns, of and from all damages, expenses, costs and charges, and against all loss and liability which he, the said sheriff, his heirs, executors, administrators, or assigns, shall sustain or in an\^wise be put to, for or by reason of the levy, taking, sale, or retention by the said sheriff, in his custody, under said execution, of the said property claimed as aforesaid, then the above obliga- tion to be void ; otherwise to remain in full force and virtue. No. 147. — Bond — Contractor's — Public Works of United States. Know all Men by these Presents : That we, R. A., as prin- cipal, and A. S. C. of New York, a corporation existing under the laws of the state of New York, as surety, are held and bound unto the United States of America in the penal sum of one hun- dred thousand dollars, to the payment of which sum, well and truly to be made, we bind ourselves, our heirs, executors, admin- istrators and successors, joindy and severally, firmly by these presents. The condition of this obligation is such, that whereas the above-bounden R. A. has on the fourteenth day of September, 1904, entered into a contract with the United States represented by Major W. H. H., Corps of Engineers, United States Army, for removing rocks in San Francisco Bay, California: Now, therefore, if the above R. A., his heirs, executors or ad- ministrators, shall and will in all respects duly and fully observe and perform all and singular the covenants, conditions and agree- ments in and by the said contract agreed and covenanted by said R. A. to be observed and performed according to the true intent and meaning of the said contract, and as well during any period of extension of said contract that may be granted on the part of the United States as during the original term of the same, and shall make full payments to all persons supplying him labor or materials in the prosecution of the work provided for in said contract, then the above obligation shall be void and of no effect; otherwise to remain in full force and virtue. Bond. 113 In witness whereof, the parties hereto have executed this in- strument this fourteenth day of September, 1904, the name and corporate seal of said surety being hereto affixed and these pres- ents duly signed by its proper officers, pursuant to a resolution of its board of trustees, passed on the e\s;hteenth day of January, J 904, a copy of the record of which is on file in the War Depart- ment. NOTE,— Act of Congress of August 13, 1894, 28 Stats. 278. No. 148. — Official Bond — Adjudicated- Know aix Men by these Presents: That whereas C. C. B., of Alameda county, in the state of California, was duly elected treasurer of said county of Alameda, at the late general election, held on the 2d day of September, A. D. 1904. Now, therefore w€, the undersigned, acknowledge ourselves jointly and severally bound unto the state of California, in the following sums, re- spectively: E. A. H., as surety in the sum of $5,000; A. L. in the sum of $2,500; L, IV. in the sum of $2,000; C. C. as surety for $5,000; W. P. T: as surety in the sum of $1,000; H. P. J. as surety in the sum of $5,000; S. B. M. as surety in the sum of $5,500; A. J. C. as surety in the sum of $5,500; W. H. D. as surety in the sum of $5,000; D. S. as surety in the sum of $1,000; B. F. R. as surety in the sum of $2,000; E. D. B. as surety in the sum of $2,000. To the payment of which several sums we respectively bind ourselves, our heirs, executors, and administra- tors, jointly and severally, firmly by these presents. Sealed with our seals and dated this twejity-second day of September, A. D. 1904. The condition of the above obligation is such that if the said C. C. B. shall pay over all moneys according to law which shall come into his hands, for state, county, or other purposes, and shall faithfully and promptly discharge all the duties of his said office that are now, or may hereafter be enjoined on him by law, then the obligation shall be null and void ; otherwise, the same shall remain and be in force and effect in law. Signed by all sureties.* *The sureties justified and the following indorsements were made on the bond: " OflScial, 1857 — Bond of C. C. B., treasurer of Alameda county. "i^led this twenty-sixth day of September, A. D. 1S57. H. M. V., Clerk. "Approved October 5, 1857, by the board of supervisors. H. il. V., Clerk. By J. A. A., Dejiuty, Clerk." On appeal it wos objected to the bond that the bond does not show any obligation upon the part of C. C. B. to pay money; that it is only by implication that C. C. B. is to be held on a promise to pay; that the sureties are not bound jointly and severally; that the principal, C. C. B., is not bound for the aggregate of all the several sums: that in- terest on the judgment against the sureties ought not to be allowed. All •bjections were overruled: People v. Breyfogle, 17 Cal. 505. New Forms — 8 114 New Book of Forms. Time to File Official Bond. — The words "to be filed witliin two days after the meeting of the supervisors," mean that the bond must be filed within the whole of the two days succeeding the day of the meeting of the board: Attorney General v. Scannell, 7 Cal. 432. If the meeting takes place on the ninth day of the month, the ofiicers have all of the tenth and eleventh to execute and present their bonds: Doane v. Scan- nell, 7 Cal. 393. That case also holds that the board had a reasonable time thereafter in which to approve or reject the bonds. Delivery of Bond. — Like a deed, a bond is not operative until deliv- ered: People V. Van Ness, 79 Cal. 84, 12 Am. St. Rep. 134, 21 Pae. 554. Filing an official bond for record is not delivery unless it is preceded by approval: People v. Ejaeeland, 31 Cal. 288. If an obligee presents an official bond in court as evidence, it is sufficient evidence of its de- livery: Tidball v. Halley, 48 Cal. 610. Successive Terms. — If elected to a new term the officer must give a new bond: People v. Aikenhead, 5 Cal. 106; cited, 5 Wash. 554, 34 Am. St. Rep. 880, 32 Pac. 538, 19 L. R. A. 500. The same case holds that the sureties for one term are not liable on account of things done or omitted in another term. New Bond — A board of super%risors may order an officer to give new bonds, but their power is not arbitraiy. They must first examine into the facts of the case and then exercise their judgment : People ex reU De Fries v. Supervisors of Marin County, 10 Cal. 344; cited, 7 Nev. 397, 12 Nev. 31. Such power is always judicial: Id. Ey Deputies. — A bond by a deputy to his principal officer is an official bond, and any person aggrieved may sue upon it if it happens to be defective in the same manner as if it were in proper form: Hubert v. Mendheim, 64 Cal. 213, 30 Pae. 633. The county has no relation to such bonds: City and County of San Francisco v. McAllister, 76 CaL 246, 18 Pae. 315. Undertakings. — They are the same wording as bonds: Canfield v. Bates, 13 Cal. 606. The omission of the words "to pay" in a bond does not matter: Billings v. Roadhouse, 5 Cal. 71. The names of the sureties need not appear in the body of the undertaking: Dore v. Corey, 13 Cal. 502. Amendment of Bonds. — A fatally defective officisfl bond cannot be cured bv amendment so as to validate acts done without jurisdiction: Geary v. Board of Supervisors, 107 Cal. 530, 40 Pac. 800. Approval and Filing of. — Obligor is not liable on official bond prior to its approval and filing: People v. Kneeland, 31 Cal. 288. If the wrong ofticer approves the bond, it appears to be good, viz., if approved by a county judge instead of a board of supervisors: Mendocino County v. Morris, 32 Cal. 145. See, also. People v. Evans, 29 Cal. 429. In approving bonds the board of supervisors exercises judicial functions: Miller v. Sacramento County, 25 Cal. 93; People v. Supervisors of Marin Co., 10 Cal. 344. Bonds can only be rejected because of want of words of form and substance, or because it is not executed properly by good and sufficient sureties: Miller v. Sacramento County, 25 Cal. 93. Failure to approve a bond in proper form and substance, is not the fault of the officer, and it does not release his sureties nor does it work a forfeiture of hia office: People v. Scannell, 7 Cal. 432. Where Officer Holds Two Offices. — A person holding two separate oflices must give a bond for each office: People v. Ross, 38 Cal. 76. The offi.ces of sheriif and tax collector are distinct and require two bonds: People v. Burkhart, 76 Cal. 606, 18 Pac. 776. Bond. t i 5 Seal and Consideration — Bonds Other than Official. — Tn states wlirro the coininon law prevails, uiidfr seal, bonds imply a consideration. la California there is no distinction between sealed and unsealed instru- ments; a signed obligation implies a good consideration. " .A.11 distinc- tions between sealed and unsealed instruments are abolished": C. (\, sec. 1629. This does not apply to notarial courts and seals of other officers and corporations required by law to authenticate their official acts under seal. State, Co.mty and Municipal Bonds. — Rneh bonds can only be issued b}' virtue of express authority' of the legislature: Sutro v. Pettit, 74 Cal. 332, 5 Am. St. Rep. 442, 16 Pac. 7. Purchasers of such bonds are bound to know the power of the municipal corporation and its officers to issue them: Sutro v. Eodes, 92 Cal. 117, 28 Pac. 98. Interest after Maturity on Coupons. — Coupons may be signed by a printed fac-simile of the maker's autograph adopted by him for that pur- pose: Pennincrton v. Baehr, 48 Cal. 565. It is only when a city or county is made generally liable for annual interest and full means are provided for meeting it that it becomes liable for interest upon interest on bonds not paid at maturity: Davis v. City of Sacramento, 82 Cal. 562, 22 Pac. 1118. In many other civilized countries no such distinc- tion is made: See cases cited from the United States supreme court re- ports. For the Pajrment of Money in Greneral. — Mistake in baptismal name of obligor shown to be accidental will not vitiate a bond: Dolton v. Cain, 14 Wall. 479, 20 L. ed. 830. When a bond has one good and one bad condition, the good one prevails: United States v. Mora, 97 U. S. 422, 24 L. ed. 1013. A bond is valid as to beneficiarv' even if it may not have been as between the maker and a surety connected with it: Ar- rowsmith v. Gleason. 129 U. S. 86, 9 Sup. Ct. Rep. 237, 32 L. ed. 630. Seal. — No seal, no bond: United States v. Linn, 15 Pet. 311, 10 L. ed. 742. Cnnstmction. — In construing bonds the wording of the condition somo- timi s bends to the general intention of the maker: Cooke v. Graham, 3 C-anch, 235, 2 L. ed. 420. See Bell v. Bruen. 1 How. 184, 11 L. ed. 89. If two reasonable constructions are possible, the one that stands for right will be adopted: Noonan v. Bradley, 9 Wall. 407. 19 L. ed. 757. A joint bond may be equitably chn^iged to several if independent evidence establishes sueh was the intention: Piekersgill v. Lahens 15 Wall. 143, 21 L. ed. 119. The reporter says that "or" is never construed to mean "and" when the evident intention of the parties would be defeated. The supreme cour* said another thing, viz.. "The word 'or' is frequently construed to mean 'and,' and rife versa, in order to carry out the evident intent of tie parties": Dumont v. United States, 98 U. S. 145. 25 L. ed. 65. Practical construction put upon bonds after their maturity is material in considering whether they bear interest according to the phice of their performance: Coghlan v. South Carolina R. R., 142 U. S. 114, 12 Sup. Ct. Rep. 150, 35 L. ed. 956. Law Governing. — United States supreme court does not know whether bonds made payable at a place outside of a state without express legis- lative authority are governed by the laws of the state where payable, or by the laws of the state where made: Ottawa v. National Bank, 105 V. S. 346, 26 L. ed. 1127; but it does know that coupons payable in New York draw interest according to its laws: Caro v. Zane, 149 U. S. 142, 13 Sup. Ct. Rep. 803, 37 L. ed. 680. Bonds issued under two harmo- nious acts, all power conferred by both may be exercised: Id. Failure to present coupons for payment does not stop the running of interest: ii6 N^w Book of Forms. Walnut V. Wade, 103 U. S. 695, 26 L. ed. 526. Coupons draw interest after maturity: Ohio v. Prank, 103 U. S. 698, 26 L. ed. 531. Interest on bonds owned and held as collateral security shoulil he allowed from date of delivery: Kichardson v. Green, 133 U. S. 49, 10 Sup. Ct. Rep. 280, 33 L. ed. 523. Negotiability of. — A blank for payee's name in bonds intended to be negotiable may be filled in by the holder. Until so filled the holder is to be regarded as the bearer: White v. Vermont E. Co., 21 How. 577, 16 L. ed. 221. If a bond is uncertain as to the amount payable, it is not negotiable; hence bonds for £225 in London and $1,000 in New York: Parsons v. Jackson, 99 U. S. 439, 25 L. ed. 457. Interest Coupons. — Detachable coupons are negotiable: Thompson v. Lee Co., 3 Wall. 332, 18 L. ed. 177; Clarke v. Iowa City, 20 Wall. 589, 22 L. ed. 427; Ketehum v. Duncan, 96 U. S. 662, 24 L. ed. 868; Hartman V. Greenhow, 102 U. S. 684, 26 L. ed. 271; Railway v. Sprague, 103 TJ. S. 761, 26 L. ed. 556; and Walnut v. Wade, 103 U. S. 696, 26 L. ed. 526, where it is said: "Where bonds have not matured, detached, ovenlue coupons are still negotiable." Suit may be brought thereon without producing the bonds to which they were attached: Aurora City v. West, 7 Wall. 105, 19 L. ed. 50. The reporter says, ' ' Coupons commend them- selves to favorable view because of their great convenience and use in interest of business and commerce." In delivering the opinion of the court, Mr. Justice Nelson said what the reporter reported by way of illustration; but said: "Even without this consideration" the coupons were negotiable: The City of Lamson, 9 Wall. 483, 19 L. ed. 729. It was also said that "interest coupons are not independent instruments, but part of the bonds not legally severed until the interest is paid": Id. Compare Thompson v. Lee, and other cases above noted. Pledges of Bonds. — A pledgee is protected as a holder to the amount of his advances: Lytle v. Lansing, 147 IJ. S. 63, 13 Sup. Ct. Rep. 254. 37 L. ed. 81. The same rule applies to a creditor without notice: American File Co. v. Garrett, 110 U. S. 294, 4 Sup. Ct. Rep. 90, 28 L. ed. 152. Rights of Purchaser. — Bonds payable to bearer are transferable by de- livery, even when overdue. To invalidate such transfer it is necessary to make out some defect in the transferrer's title: National Bank of Washington v. Texas, 20 Wall. 81, 22 L. ed. 295; City of Lexington v. Butler, 14 Wall. 296, 20 L. ed. 813; Burke v. American Loan etc. Co., 155 U. S. 540, 15 Sup. Ct. Rep. 214, 39 L. ed. 253; Railway v. Spragne, 103 U. S. 760, 26 L. ed. 556. The burden of proof is upon him who asserts bad faith in acquiring bonds payable to bearer: Kneeland v. Lawrence, 140 U. S. 212, 11 Sup. Ct. Rep. 786, 35 L. ed. 493. Purchaser of bonds with overdue coupons sold at a small price and containing un- filled blanks is supposed to have notice that they were stolen before issuance: I'arsons v. Jackson, 99 U. S. 441, 25 L. ed. 457. Indemnity Bond. — "Whereas, the undersigned have this day, by deed bearing date and executed this twenty-ninth day of August, 1857, entered into an agreement with divers persons at present occupying portions of the Ranch San Leandro, respecting said rancho, and to adjust difficulties between said persons and the undersigned; and there is pending an appeal from the circuit court of the United States in the case of C. Royseau v. R. Campbell et al., said persons, parties to said agreement of this date, being parties defendant thereto. Now, therefore," etc. Held, that on demurrer the bond is binding and imports a consideration: Mulford v. EstudUlo, 17 Cal. 618. Bond for Deed. — A bond with the usual condition concluded as fol- lows: "Now, if the said B. Schreve shall on or before the fifteenth day of April, 1895, make, execute and deliver to said W. and E. B. Kinkaid, a quitclaim, good and sufficient deed to [certain premises], Bond — Contracts. i i 7 providod, that on or before the fifteenth day of April, 1.S59, "W. and E. B. Kinkaid, do well and faithfully pay to B. Schreve, or ordr-r, cer- tain promissory notes," etc. Held, that demand made by the obli^fea upon the obligor to make the deed is essential to recovery: Kinkaid t. Schreve, 17 Cal. 275. No. 149. — Bond from Several Persons for Several Sums. Know ali. Men by these Presents: That A. B. etc., C. D. .rs. Mutual Obligations. — If a mimhcr of persons subscriho to a paper in which they promise to contribute money for the accomnlighmcnt of an object of interest to all, as the erection of a building for a college, and which object cannot be accomplished save by their common per- formance, their mutual promises constitute mutual obligations, and are a sufficient consideration to support the promise of each: Christian Col- lege V. John Hendley, 49 Cal. 347. Such writings are contracts. In the case of Grand Lodge of the Independent Order of Good Templars of the State of California v. Elina C. Farnham, it was said that a nromise to pay subscription to a charitable object is a mere of- fer, and may be revoked at any time before it is accepted by the prnn- isee, and an acceptance can only be shown by some act by the prom- isee whereby a legal liability is incurred or money is expended on the faith of the promise. The rule is otherwise when the subscribers agree to make up a specific sum, and when the withdrawal of one increases the amount to be paid by the others. In such case there is a mutual liability, and the cosubscribers may maintain an action against one who refuses to pay. The court also said, Christian College v. Hendley, 49 Cal. 347, is not in conflict with what was said above. It would jave been good had a reason been stated why it is not. Subject Matter of Subscriptions. — It is not against public policy to obtain subscriptions to build a statehouse: State Treasurer v. Cross, 9 Vt. 289. 31 Am. Dec. 626; nor to aid all public works: Commissioners of Canal Fund v. Perry, 5 Ohio, 56; and in Missouri a woolen mill is con- sidered a public benefit because it is a public industry, and enhances the value of adjacent property: Pitt v. Gentle, 49 Mo. 75. Under this head a long line of public enterprises, such as railroads, churches, canals, schools, colleges, racetracks, theaters, cemeteries, balls and banquets have been aided by subscriptions, and the subscriptions enforced by the courts, which are collected, sorted and classified in volume 45 of Century Edition of American Digest, from 1658 to 1896. Consideration for Subscription. — A subscription, like any other prom- ise, requires a consideration to support it: Gait v. Swain, 9 Gratt. 633, 60 Am. Dec. 311. When several promise to contribute to a common object, the promise of A. is a good consideration for the promise of the others. Defendant, with others, associated together to raise a fund with which a minister would be supported to "perpetuate the blessings of the Gospel." Consideration was good: Somers v. Miller, 9 Conn. 458. An undertaking to purchase a lot and build a church if the object is stated in a subscription paper is a good consideration in Connecticut, for a subscription: North E. Soe. v. Matson, 36 Conn. 26. Defendant promised to pay plaintiff $1,000 toward the payment of a soldiers' monument if a county would pay $2,000. The county paid plaintiff that amount. Held, that defendant's subscription became ab- solute when the county paid the $2,000 and the consideration for defendant's promise was said payment: La Fayette C. M. Corps v. Magoon, 73 Wis. 627, 42 N. W. 17, .3 L. R. A. 761. Contingent and Conditional Subscriptions. — Where a subscription paper recites that the subscription is made on the express condition that a certain sum in the aggregate shall be subscribed and paid in for the purpose stated before the agreement is to become binding, valid subscriptions, or actual payments to the amount specified, are contemplated as a condition precedent to absolute liability: First Pres- byterian Church of Albany v. Cooper, 10 N. Y. St. Rep. 142. If conditional subscriptions are made by those who have no author- ity or power to make them, thev must be disregfarded when considering Contracts, i jg whether the conditions of the subscription paper have been eomplied with: Twenty-third St. B. Ch. v. Cornwall, 56 N. Y. Sup. Ct. 2G0. A subscriber who makes an agreement with a county to give a mt- tam sum for certain purposes on condition that the county shaD make a stated donation for the same purpose, becomes bound by his apre^h ment when the county raises and gives the specified amount: La Pay- ette County Monument Corp. v. Ryland, SO Wis. 29, 49 N. W. 1.57. A subscrij)tion to a school upon condition that the instructor agrees to teach if he procures sixty subscribed scholarships is not binding on the subscriber if the instructor conducts the school with less than sixty subscribed scholnrships: Turner v. Baker, 30 Ark. 186. In all such subscriptions the courts hold that the liability of the subscriber is fixed when the condition upon which he subscribed haa happened: Franklin College v. Huriburt, 28 Ind. 344. To sustain such subscriptions it is essential that there shall be no conditions as to the liability of any of the subscribers not applicable to all: New York Exch. Co. V. De Wolf, 31 N. Y. 273. Failure of Consideration for Subscription. — After subscription, if nothing is done within a reasonable time to accomplish the object in view, it is a failure of consideration: Poxcroft Academy v. Pavor 4 Me. 330; Brimhall v. Van Campen, 8 Minn. 13, 82 Am. Dee. 118. ' Subscribers agreed to pay certain amounts to a religious society for the support of a minister of their faith, but a person of another faith was employed. Held, to be a failure of consideration for the amounts promised: Congregational Soc. in Troy v. Goddard, 7 N. H. 430. Subscription When Only an Offer.— A gratuitous subscription by one signer is but an offer, which, until accepted by the promisee, in express terms or by the performance of the conditions stipulated therein, is a nudum pactum: Broadbent v. Johnson, 2 Idaho, 300, *32.5, 13 Pac.'83. Where a subscriber writes conditions above his subscription, others subscribe r.nd add other conditions; held that each subscriber 'is held to his own conditions: Miller v. Preston, 4 N. Mex. 314, 17 Pac. 565. Promises to Pay Subscription.— A subscriber's repeated promises to pay need not be followed by work done in reliance thereon. If the subscription is not binding, then the subscriber's promise does not validate. An action to recover is always founded on the subscription and not on a subsequent promise: Thomas Kane & Co. v. Downing, 14 Mont. 343, 36 Pac. 355. In Landwerlen v. Wheeler, 106 Ind. 523 5 N E. 888, some weight was given to the fact that repeatedly promisino^ to pay a subscription had great weight. ' " In Indiana a subscription to assist in the payment of premiums oflfered by the directors of a driving park association where horseraces were to take place is based upon a good consideration: Mullin v Beech Grove D. P.. 64 Ind. 202. If it is to pay off an old church debt it is not good unless there is a new consideration founded upon an obligation which IS nssunied by the signer's subscription: University of Des Moines v Livingstone, 57 Iowa, 307, 42 Am. Eep. 42, 10 N. W. 738 \ written sjbscnption imports a consideration: First M. E. Church of Madison v Donrrll, 95 Iowa. 494, 64 N. W. 412. ' ^"-^aison v. In Massachusetts a subscription or note made in aid of a fund for the support of a minister or parish is void for want of a consideration- Boutoll v. Cowdcn, 9 Mass. 254. If the subscription is to pay a certain sum to raise a fund to estab- lish an academy, made to no one in particular, and having only a public benefit for its consideration, it is not binding: 7 Am. Dee 201 A subscription is supporte.l by a sufficient consideration where others were led to subscribe thereby ["a bell cow"]: Pembroke v Stetson 22 Mass. 506. Contrary, see Methodist O. H. Assn. v. Sharp. 6 Mo App' loO. An agreement as follows was held to be supported upon a good if I20 New Book of Forms. not a valuable, consideration: We agree "to pay the several sums set opposite to our respective names for the purpose of furnishing a free dinner on the Fourth of July to returned soldiers": Comstock v. How- ard, 15 Mich. 237. A subscription by which persons interested in the repairing of a highway promise to pay to one of their number the sums severally subscribed by them to be expended for that purpose is valid: Van Eensselaer v. Aikin, 44 Barb. 547. A subscription reading: "We, the undersigned, for value received, promise to pay to the consistory of A. B. the several sums set opposite to our several names for the purpose of paying the indebtedness of said church, on condition that $1,000 be subscribed." Held, to be valid: Trustees of Reformed P. D. Church of Rochester v. Hardenburg, 48 How. Pr. 414. A note executed as a gratuitous subscription to a college cannot be enforced when nothing has been done, and no liabilitv incurred on the faith of it: Sutton v. Trustees of O. U., 7 Ohio C. C. 343. Work Done, Money Expended, Liability Incurred on Faith of Prom- ise. — A subscription on faith of promise is binding after expenditures of money or liability incurred: Griswold v. Trustees of Peoria Univer- sity, 26 HI. 41, 79 Am. Dec. 361; Underwood v. Wolden, 12 Mich. 73; \z.n Rensselaer v. Aikin, 44 Barb. 547; Ohio W. F. College v. Higgins, 16 Ohio St. 20; Ryerss v. Trustees P. Conn, of B., 33 Pa. St. 114; Gulf etc. Ry. Co. v. Neeley, 64 Tex. 344; Gait's Exr. v. Swan, 9 Gratt. 633, 60 Am. Dec. 311. In such cases an action will lie to recover a subscriber's proportional part of the amount due: Pryor v. Cain, 25 111. 292. Acceptance of Subscription. — As a general rule, unless the subscrip- tion paper so provides, notice of acceptance of a subscriber's promise is unnecessary: Richelieu Hotel Co. v. International Military Encamp- E-ent Co., 140 111. 248, 33 Am. St. Rep. 234, 29 N. E. 1044; but if it is stipulated that notice of acceptance shall be given, a subscription will n t be enforced until notice is given: Wiswell v. Bresnahan, 84 Me. 397, 21 Atl. 885. Without stipulation that notice of acceptance shall be given, any ex- penditure of money or liability incurred upon the faith of a subscrip- tion is all that is necessary: Grand Lodge, I. O. G. T. v. Farnham, 70 Oal. 158, 11 Pac. 592. On the other hand, it has been held that to make a subscription binding it must be accepted "like any other promise or offer," and the party apprised within a reasonable time that his offer is accepted: Gait's Exr. v. Swan, 9 Gratt. 633, 60 Am. Dec. 311. The use of the words, "Like any other promise or offer," in deciding Gait's Exr. v. dwan, does not seem to conflict with the first case in the note referred to. Verbal Promise to Subscribe. — A promise made publicly in church to subscribe a portion of the indebtedness due from the church is founded upon a valid consideration, where expenses have been in- cnrred upon the faith of such subscriptions generally, though no defi- nite expenditure was made upon the faith of one particular subscrip- tion: Capelle v. Trinity M. E. Church, Fed. Cas. No. 2392. Time of Performance. — Subscription read: "And upon the further consideration that the board of trade shall erect and complete said proposed building and occupy the same for its regular sessions within two years from .lanuary 1, 1881." Held, that the latter condition went to the whole promise, and on a breach thereof no suit could be main- CONTR.\CTS. 121 talned on the contract: Cincinnati etc. R. Co. v. Bensley, 51 Fed. 738, 19 L. R. A. 796, Where there are paymenta to be made at different times at different Btages of the work, only those subscriptions are binding that correspond ■with the work finished as stipulated: Johnson v. College Hill etc. R. R. Co., Ohio, D. C, 3 Week. Law Bui. 410. If a structure is to be erected, it must be erected within a reasonable time to hold a subscriber to its building fund: Paddock v. Bartlett, 68 Iowa, 16, 25 N. W. 906. When a building is to be finished at a fixed time, time is essential, and strict performance only holds subscribers: Bohn Mfg. Co. v. Lewis, 45 Minn. 164, 47 N. W. 652. In Homan v. Steele, 18 Neb. 652, 26 N. W. 472, it is said that a delay of a few days is not material; and in Paddock v. P.artlett, 68 Iowa. 16, 25 N. W. 906, it is said that generally, where the time for the erection of a building is not stated in a subscription, it must be erected within a reasonable time. In Seley v. Texas etc. R. Co., 2 Willson Civ. Cas. App., sec. 87, it is held that when a subscription paper binds a railroad company to build its road, and to complete and equip it within twelve months from the date of the contract, and if the road is in progress of bona fide construction and if the failure to construct it within the stipu- lated time vs reasonably accounted for, and if the road is fully con- etructed and trains ninning thereon before suit is brought to enforce the subscription, the siibscriher is liable. Revocation of Subscription. — A promise to pay a subscription to some charitable object is a mere offor, and may be revoked at any time be- fore it is accepted: Grand Lodge T. O. G. T. v. Fnrnham. 70 Cal. 158, 11 Pac. 592. See, also. Williams v. Rogan. 59 Tex. 438. The removal from a city, or change of residence in a city by a subscriber where a church is located, is not a revocation, '^nd will not bar the recovery of the money subscribed for its completion: Wilson v. First Pres. Chr. of S., 56 Ga. 554. -A. subscriber who headed a subscription list for the benefit of a church notified the trustees that ho would not pay his subscription unless a certain person was excluded from speaking in the church. The supreme court of Illinois differed with him and Snell sulked: Snell V. Trustees, 58 111. 290. When upon the promise by subscribers the promisee expends money, f^c., upon the faith of the promise, the subscriber must pav: Beach V. First M. E. Church, 96 111. 177. See, also, Athol M. H.*Assn. v. Carey, 116 Mass. 471. Assignment of Subscription. — A subscription list to pay a stipulated sum to a railroad or its assignees upon the completion of a denot is a negotiable instrument: Vannay v. Duprez, 72 Ind. 26. Also so held as applied to a subscription bonus for the erection of a hotel: Southern Hotel Co. V. Chauteau, 53 Mo. 572. Such assignments are taken sub- ject to all equities in favor of subscribers: Rockwell v. Daniels, 4 Wis. 432. Release or Discharge of Subscriber. — Misuse of the money subscribed or the use of it for othor purposes does not discharge the subscriber: Franklin College v. Hurlburt, 28 Ind. 341. In Vermont, a subscription to a religious society by its members binds and they cannot disi'harge thoinseivis from their obligations by any change of religious belief: First Congregational Soc. v. Swan, 2 Vt. 222. Death or Insanity of Subscriber. — If a subscriber dies before his offer is accepted, it is there bv nvokcd: Grand Lodge I. O. G. T. v. Farn- ham, 70 Cal. 158. 11 Pac." 592. In Pratt v. Trustees, 93 111. 475, 34 Am. Rep. 187, the same point' was involved, with the same result. 122 New Book of Forms. The insanity of the subscriber has the same effect: Beach v. First M. E. Church, 96 111. 177; but if a promissory note is given by the subscriber, his death does not revoke his subscription: Friedline v. Board of Trustees, 23 111. App. 494. If the subscriber died before work was commenced on a church, for the erection of which he subscribed, the fact that the church was built in reliance on his subscription does not make his estate liable to pav the subscription: Twenty-third St. Baptist Church v. Comwell, 117 N. Y. 601, 23 N. E. 177, 6 L. E. A. 807. A subscription for the benefit of a proposed association is a mere proposal and is withdrawn, by the death of a subscriber, before the association is formed: Phipps v' Jones, 20 Pa. St. 260, 59 Am. Dec. 708. Changes in Contract. — Where a subscriber to a public work permits it to be carried on for a time without objection, he will be regarded as acquiescing in the acts done, and will not be relieved from his subscrip- tion on the ground that the dan has been changf^d and the work is of no benefit: Ex parte Booker, 18 Ark. 338. Subscription to pay a sum of money if a college should be located on a designated forty acres of a tract of land. It was built on the tract but not on the forty acres. After it was built defendant made an oral promise to pay his subscrip- tion, and plaintiff contended that the new promise was acquiescence in the change of plan. There being no consideration for the oral prom- is \ held that defendant was discharged from his obligation to pay: Schuler v. Myton, 48 Kan. 282, 29 Pac. 163. There was a subscription to build a church. It was not built as contemplated by the subscribers. A subscriber said to those in charge, "Go ahead and finish it and I will pay my subscription." Held to be acquiescence in the change of plans: Reformed Prot. Dutch Church v. Brown, 17 How. Pr. 287. See, also, 29 Barb. 335. Joint and Several Liability. — A subscription providing that the sub- scriber shall be liable only for the amount set opposite his name is a several obligation: McFarland v. Lyon, 4 Tex. Civ. App. 586, 23 S. W. 554. "We, the subscribers, promise to pay A. B., teacher, the following rates of tuition," etc. The liability is several, and not joint: Beck v. Pounds, 20 Ga. 36. "We promise to pay the amount set opposite to each of our names," Ib not a joint but is a several promise: Robertson v. March, 4 111. 198. "We, the undersigned, promise to pay the following subscriptions." There were amounts set opposite to each name. Held to be a several, and not a joint, contract: Landwerlen v. Wheeler, 106 Ind. 523, 5 N. E. 888. "We each agree to pay A. B. $1,000 when he has drilled a gas-well" was held to be a several contract to each subscriber: Current v. Fulton, 10 Ind. 617. A contract was made with a large number of subscribers to build a creamery for the aggregate amount of their subscriptions, they agree- ing to pay "the above amount," and not to be liable for any indebted- ness "except that which is hereby created, and to be paid by the par- ties of the first part." When the subscription was signed it was orally agreed that each subscriber would be liable only for the amount Bet opposite to his name, and it was so held: Davis v. Belford, 70 Mich. 120, 37 N. W. 919. In Bort V. Snell, 39 Hun, 388, it was said, generally, that the signers of a subscription paper are severally, and not jointly, liable. Contracts. 123 No. 151. — Subscription (Contract) for Charitable Purposes. San Lilts Obispo, Cal., January i, j8q6. We, the undersigiicd citi::ens and business men of the city of San Luis Obispo, do hereby agree to pay the amount set opposite our respective names to the subscription committee of Los Osos Parlor, No. 61, N. S. G. W., on or before the fifteenth day of March, iSg6, at the city of San Luis Obispo. The money to be used in entertaining delegates to the Grand Parlor of the A''. S. G. IV. during their stay in the city of San Luis Obispo. J. & J., Ramona Hotel, $500. Subscriptions for Entertainments. — A subscription paper went forth to obtain promises to pay the amounts set opposite each subscriber's name, to "entertain" certain "delegates" scheduled to visit a city at a time stated. The paper was circulated by a committee composed of citizens, residents of the city to be visited. The paper was in the same words as the above form, to which this writing is a note. The defendants were subscribers and the proprietors of a large hotel in tl:at city at the time the subscription was made. A committee was considering the matter of giving a ball, a banquet, or both, to the dele- gates, and it was agreed (verbally) at the time of the subscription, or immediately thereafter, between the committee and defendants that if the ball and banquet were given, that one of them should be given at defendant's hotel, and in case neither were given at their hotel, their subscription should be reduced one-half. The court says that this agreement converted the subscription, which was, on its face, orig- inally, one to a charitable purpose, into a contract to pay the amount subscribed upon the condition that a ball or banquet should be given to the delegates at defendants' hotel; and a ball was given pursuant to the agreement. The promise was a good consideration for another promise to pay the full sum sued for. The defendants contended that there were expenditures made that did not come within the meaning of their subscription for "entertainment" which they said was synony- mous with "board," and includes only the ordinary necessities of life. The court took judicial notice of the fact that there is a large distinc- tion between entertaining a friend at one's home, or a hotel-keeper "entertaining" a traveler at his hotel and entertaining a large body of strangers by the residents and business men of a city. At this point the court took judicial notice of several things known to many people who have been taken judicial notice of, and says: "What may be in- cluded in the entertainment of the visiting body is usually limited to the amovnt of money available for the purpose, and the ingenuity of tke entertainers in devising sources of enjoyment." The money was ex- pended for purposes fairly within the intent of the subscription paper: Lasar v. Johnson, 125 Cal. 549, 58 Pac. 161. This note is incomplete unless it is said that the original "charitable purpose" subscriptioH was toward the worthy expense of entertaining delegates to the Grand Parlor of the California Native Sons, at San Luis Obispo in April and May, 1896. No. 152. — Subscription (Contract) to Take Stock in a Corpo- ration to be Formed. We, the undersigned, agree to form a corporation under the laws of the state of California for the purpose of the manufac- 124 New Book of Forms. turing hydrogen and carbon monoxide gases. The capital to be three hundred thousand dollars, divided into one hundred thousand shares of the par value of three dollars eaeh. As soon as the corporation is formed we, and each of us, agree to pay to the secretary- of the corporation, at his office in the city and county of San Francisco, California, without demand, ten per cent of the par value of the stock subscribed by us, and the balance when called upon, until the amount subscribed is fully paid, but all other calls under said subscription shall be made by the board of directors with such notice as the corporation's by-laws shall pro- vide. Witness our hands this first day of April, igo^- A. S., San Fratu:isco, $^,ooo. Subscriptions Binding. — A subscription to the stock of a proposed corporation for the purpose of forming it is valid; the promises of the other signers and the common object sought to be accomplished is a sufficient consideration for the promise of each signer: Marysville Elec- tiic L. & P. Co. V. .Johnson, 93 Cal. 538, 27 Am. St. Eep. 215, 29 Pae. 126, Such subscriptions need not specify the acts necessary to be done to incorporate or show where the principal place of business of the corporation is to be. The mutual promise of the subscribers is a suffi- cient consideration for the promise of each and is valid. Such an agree- ment does not make the subscriber a member of the corporation; but such membership is immaterial where there is a promise to pay a cer- tain percentage of the par value of the stock: West v. Crawford, 80 Cal. 19, 21 Pac. 1123. No. 153. — Subscription (Contract) to Secure Right of Way, etc. We, the undersigned, residents of San Bernardino Valley, in consideration of the benefits accruing therefrom, hereby sub- scribe and agree to pay the amount set opposite our names to se- cure the right of way and depot grounds for the San Bernardino Valley Railway Company on the line known as the L. or Park Avenue line right of way, one hundred feet wide over and through my land kncnvn as "Victoria," also depot grounds; also in addition to the above, the sum of two thousand five hundred dollars; all on condition that the California Central Railway Company maintain said road, to be built by me on a line running parallel to Dr. P.'s north line, and distant therefrom eight hun- dred feet, as marked on Engineer T. P.'s map the precise loca- tion of depot as may be agreed upon by M. G. and P. M. G., $2,500. NOTE. — Action brought in name of men comprising a railroad com- mittee. The subscription was upheld. The wording of the subscription paper was complicated and not in good form, but as incomplete as it was, it was upheld in Judson v. Gage, 91 Cal. 304, 27 Pac. 676. The decision says: "The road did conform to Mr. Gage's ideas." Contracts. No. 154. — Subscription (Contract) Assisting to Build a Struc- ture (Railroad). Whereas, the undersigned desire to procure tne construction and operation of a steam railroad from the Oakland -wharf of the C. P. R. R. Co. to the State University at Berkeley, and the Western Development Company proposes to construct and oper- ate, or cause to be operated, a storm railroad on said line, pro- vided the undersigned will, at their own expense, procure and convey to it the right of zvay; and provided further that the un- dersigned will pay, or cause to be paid, to said company the sum of twenty thotisand dollars upon the completion of the road the road to be commenced upon the execution of the conveyance and the deposit of said tzventy thousand dollars in bank; the money to be paid by the bank to the company upon the comple- tion of the road : Now, therefore, in consideration of the premises, we, the undersigned, hereby agree to contribute and pay for the carrying out of the fotcgoing enterprise, on demand, the sura of money set opposite our names, in United States gold coin. Names Amount ^ NOTE. — Action brought on the subscription in name of Western De- velopment Company and sustained in Western Development Co. v Emery 61 Cal. 611. ^' No. 155. — Subscription (Contract) for a Book to be Published Whereas, T. S. & S., publishers, are about to publish the life and times of S. L. and S., attorneys at law, in nine volumes, of 800 pages each, bound in full yellozv wolf, icifh 3,000 illustrations by the celebrated artist, S. S., Esq., to be delivered as each vol- ume is published, F. 0. B. C, publication to commence on or before January i, ipo^, and to be completed on or before Janu- ary I, 1Q06: Now, with the object to promote the circulation of instructive literature, I subscribe for three sets, at $'i.oo a vol- ume. The publisher reserves the right to publish all or any of the illustrations in one (i) extra volume for which I also sub- scribe and agree to pay $j.oo. J. S. Subscriptions After Publication. — As to subscriptions made after the publishers have announced a publication, the universal judicial opinion on this subject is that contracts, by the terms of which a person agrees to take and pay for a book is void for want of consideration as to un- delivered books, etc. Such contracts may be rescinded at any time ou the part of the subscriber V)y giving the publisher written notice not to deliver any more books, etc., under the contract. If the sub- scription is made before the work is commenced to be published, and if it can be shown that the publication was commenced and continued on consideration of the subscription, recovery may be had; but it is clear 126 New Book of Forms. that if the subscription is made after the work is commenced to be pub- lished, there is no consideration for the contract: Pomeroj's Notes to Estee's Pleadings, vol. 1, sec. 392. No. 156. — Contract and Specifications — To Construct Flume, Ditch, etc. This agreement, made and entered into this thirtieth day of March, A. D. ipo^, between the San Diego Flume Company, a corporation, organised and existing under the laws of California, the party of the first part, and /. /., of San Diego, California, the party of the second part, witnesseth : That the said party of the second part, for and in considera- tion of the compensation and payments hereinafter promised and agreed to be made by said party of the first part, hereby cove- nants, promises, and agrees to do and perform certain work (in accordance with the plans and specifications hereunto attached and which are hereby made a part of this contract) for said party of the first part, along the Hume line of said party of the first part from said first party's diverting dam on the San Diego riz'tr to its, said first party's, city reservoir near San Diego. Said works so contracted and agreed to be done and performed by said second party hereto for said first party to consist as follows : FIRST GRADING. Grading, Hiime-hed, surface ditches, and tunnel approaches from first party's diverting dam on San Diego river to its, said first party's, proposed city reservoir near San Diego. SECOND TUNNELS. Excavating of about three thousand lineal feet of tunnels and lining of same with masonry, and also timbering same, in ac- cordance with plans and specifications hereto attached. It is hereby expressly agreed and understood by and on the part of the second party hereto, that if in the opinion of the chief engineer of said first party hereto, or his assistant, .any work under this contract is improperly done or improper materials used therein, the same shall be immediately, upon instructions of said chief engineer, or his assistant, to said second party, be re- placed and removed in accordance with said instructions. It is further expressly agreed by and on the part of said second partv hereto, that said first party shall have the right to change the line or grade or Hume-bed or tunnels at any time such clmnge is recommended by its, said first party's, chief engineer. It is further ag'reed by said party of the second part hereto, that he, said second party, will furnish and provide at his owm cost all tools and implements of every kind and description used in and about said work, and also all material used and employed Contracts. 127 in its construction other than lumljcr for tunnel lining, and also all lime and cement required to be used, in accordance with speci- fications hereto attached, which said lumber, lime, and cement said Hrst party hereto agrees to furnish and deliver free of cost to said second party hereto upon the ground where same is of easy access to said second party, and where same can without un- usual delay be delivered by said first party. Said second party hereto hereby agrees to furnish at his own cost ample and suitable protection from damage by weather for all lime and cement delivered as aforesaid to said party of the second part. In case of any damage to any portion of w ork done under this contract by reason of freshets, rains, or accidents, or any cause wliatsoever, before final acceptance of said work by the chief engineer of said first party, said second party shall and will at his own proper cost and expense fully repair the same. It is hereby further expressly agreed by and on behalf of said second party hereto, that no part of work under this contract shall he sublet without the consent in writing of said first party hereto. Said second party hereto hereby covenants and agrees to hold harmless said first party herein as against all liens and claims of laborers and mechanics for labor done and materials furnished under this contract, and hereby grants to said first party the op- tion, within its, said first party's, discretion, through its duly ac- credited agent, to be present at the payment of, and ascertain that all wages of employees of the contractor herein — i, e., the party of the second part — and all sums of money due subcon- tractors, if any, and all sums of money due for materials fur- nished, are paid from the amounts to be paid on the monthly and also on the final estimates, before paying over to said second party herein any balance that may be due hereunder. Said second party hereto hereby covenants and agrees to begin work under this contract w'ithin ten days from date hereof, and to complete same on or before the Hrst day of November, igof,; and in case of failure of said second party thereto to diligentlv prosecute work under said contract, or according to specifica- tions, or fails to hold harmless said first party hereto as against all and every lien of laborers, mechanics, and for materials fur- nished, said first party herein is hereby granted the right, upon written notice to said second party, to cancel said contract, and to complete under its own direction the work herein contracted to be done, or to contract anew therefor, as in its judgment shall be deemed proper, and to declare forfeited, as stipulated and liqui- dated damages for the nonperformance of the covenants and agreements herein contained, the unpaid balance and all thereof, then and at the date of said written notice in the hands of said first party herein. 128 New Book of Forms. Said second party hereto hereby further covenants and agrees to hold harmless said first party herein as against all damages at law resulting from any accident or accidents to men in his, said second party's, employ under this contract. Said first party herein further covenants and agrees to provide all right of way along its heretofore mentioned flume line as ex- peditiously as possible, and said second party hereto hereby cove- nants and agrees to hold said first party harmless in case of fail- ure to provide the necessary right of way caused by any delay resulting from legal proceedings to procure the same. And for and in consideration of the foregoing covenants, prom- ises, and conditions on the part and on behalf of said second party hereto to be kept and performed, said first party hereto hereby promises and agrees as follows, to wit : To pay to said second party as herein set forth : For mason work, per perch of i6 1-2 cubic feet $ 2 00 For concrete work, per cubic foot 40 For earth work, per cubic yard ^5 For all gravel and cement, per cubic yard ^0 For grading of surface rock, per cubic yard. ... 12^ For approaches to tunnels, per cubic yard i 00 For approaches to tunnels, hard rock, per cubic yard 2 00 Running tunnels (3,000 feet, more or less), per lineal foot (size thereof as per plan "A" to set contract attached) 15 00 Timbering tunnels, per lineal foot 40 Said first party hereto hereby reserves the right, and said right is hereby conceded by said second party, to change, alter or mod- ify the shape of all tunnels to be run, and to enlarge or decrease in size the same as the chief engineer of said first party may di- rect, and said party of the first part shall pay an amount per lineal foot for said tunnel work as the changed or altered "size thereof shall bear to the annexed plan, marked plan "A," and said heretofore mentioned sum or rate of $15 per lineal foot. Payments for the foregoing work to be made by said first party to said second party as follows : Fifty (§0) per cent cash, on estitnates to be made monthly, on or about the iirst of each and every month, until the completion of said work [state the agreements as to payments]. In witness whereof, said party of the first part, by its president and secretary thereunto, first duly authorized, has caused its cor- porate name and seal to be attached hereto, and said party of the second part has set his hand and seal the day and year first above writteru Contracts. 129 SPECIFICATIONS. GRADING. Under this head is included all excavations and embankments required for the formation of the fiume-bed pits for trestle bents, surface ditches, tunnel approaches, and the crossing or change of wagon roads. All cuttings shall be measured in the excavations and estimated by the cubic yard under the following heads: EARTH. Will include all excavations, irrespective of the material, except the same be gravel, cement, surface or hard blasting rock in quan- tity and at any one place of more than thirty (^0) cubic yards. HARD ROCK, Will include all hard blasting rock occurring in quantity at any one place exceeding thirty cubic yards. The flume-bed zv-ill be graded twelve (12) feet wide, and with such slopes as the engineer may designate. All material excavated (except luird rock) shall be wasted at least three feet beyond slope of cuts, and outside line of timber work for Hume, and 011 the lower side of the Uutne line, wlxich shall be designated by the engineer. The hard rock excavated must be deposited in the adjacent em- bankments when the haul does not exceed one hundred (100) feet. Large boulders not broken up and diMcuIt to move may be wasted. Boulders or other material above the Hume line which the en^ gincer may consider will end-anger the Hxime must be removed, and will be paid for at contract price for similar material. Public roads must be kept open and not obstructed or endan^ gered by any of the material handled in grading, and due notice given teams and travelers on public roads when blasts that might endanger them are about to be set oif. TUNNELS. Tunnels must be excavated to the lines as shcnvn on the draw- ings of the cross-sections and be lined or left without lining, as the engineer may direct. Tunnel work will be classified as follows: First. Tunnel excavation in earth will include all material excavated, except tJie same be in hard blasting rock. Second. Tntnicl excavation in hard blasting rock. Third. Stone masonry zvill include the stone work in tne por- tals and walls of tu)incl lini)ig and plastering the same. New Forms — 9 130 New Book of Forms. Fourth. Concrete will inelude the concrete work in bottom of tunnels, also the lining of the sides of tunnels in liard rock and plastering the same. Fifth. Tunnel timbering will include the timber lining and lagging of roof above the stone masonry, as shoivn on plans here- after, at the option of the engineer, to be submitted and adopted. The tunnel excavation will be estimated by the lineal foot, and will include the length contained between the two portals. Stone masonry and concrete work will be estimated by the cubic yard. Tunnel timbering will be estimated by the lineal foot of tunnel for the portion that may be timbered. Where the tunnels require lining the general form of masonry zcill be as shoiun on the draivings hereafter, at the option of tlie engineer, to be submitted and adopted, or increased in thickness, as the engineer in his judgment may deem necessary. The stone masonry in portals and tunnel lining will be of broken range rubble work, of good quality, laid in mortar, to be well bonded and leveled. The arch portals to be built at each end of tunnels, and arch carried ten feet or less inside of tunnel. The zvhole inside surface of the stone masonry to be plastered smooth wi.th one coat of fine cement mortar. Any spaces remaining between the walls or lagging and inside of tunnels as excavated to be completely Ulled as the zvork pro^ gresses zvith dry rubble or other material, solidly tamped in and acceptable to the engineer. The proportions of sand, cement and lime in the mortar used and of material for concrete, as well as the manner of mixing the same and putting it in the work, shall be as directed by the engineer. In all cases where the word "engineer" is used, the engineer in charge of construction is meant, but the directions of any subor- dinate engineer shall be obeyed when transmitting the orders of his superiors. Specifications accompanying contract tjiis day signed. See plan "A," attached to original contract on file in office of San Diego Flume Company.* The followincr notes refer to general and special business contracts, and moral obligations. Creation of Contracts. — To make a lawful contract, parties capable of contracting are necessary, and a good consideration and object, as well as mutual consent. There must not be fraud, undue influence, or mis- take. All the parties must agree to the same thing. If there is a material misunderstanding as to the terms of the contract neither party is liable: Loaiza v. Superior Court, 85 Cal. 11, 20 Am. St. Rep. 197, *See under head "Liens" full notes relating to contracts sucli aa the above and others. Contracts. 131 24 Pac. 707, 9 L. T?. A. 376; Mcux v. Ho^e, 91 Cal. 442, 27 Pac. 744. Tf there is a mutual misunderstanding as to the amount of the consideration, there is no contract: Rovegno v. DeflFerari, 40 Cal. 4:j9. In every contract it is essential that all parties must assent to the subject matter in the same sense: Harvey v. Duffey, 99 Cal. 401, 3.3 Pac. 8i'7; Yore v. Bankers' Life Assn., 88 Cal. 609, 26 Pac. .514. If an offer is withdrawn before it is accepted, there is no contract: Martin v. Hud- son, 81 Cal. 42, 22 Pac. 292. An ofifer to do a valuable service for another, provided he complies with certain condition? mentioned in the offer, is not a contract unless the conditions are complied with: Northam v. Gordon, 46 Cal. 582. And when the services have been rendered, although there was no contem- pt raneous agreement to perform, the prr)niisor is liable: Nevada Bark v. Steinmitz, 64 Cal. 301, 30 Pac. 970; Mathewson v. Fitch, 22 Cal. 86. A contract must always be mutually binding: Doe v. Culverwell, 3.5 Cal. 291. Consideration. — Neither a promise to perform a duty . .r the perform- ance of a duty is a good consideration for a contract. Agreement with- out consideration cannot be enforced: Sullivan v. Sullivan, 99 Cal. 187, 3o Pac. 862. A pre-existing debt is a sufficient consideration: Daxns v. Russell, 52 Cal. 611, 28 Am. Rep. 647; and so is the cancellation of a pre-existing debt: Schluter v. Harvey, 65 Cal. 158, 3 Pac. 659. It is necessary that some advantage to the promisor or injury to the promisee should occur. It must be a present and unexecuted considera- tion: Comstock v. Breed, 12 Cal. 286. Extension of time to pay a debt is a valuable consideration for a promise: Burkle v. Levy, 70 Cal. 250, 11 Pac. 643. Mutual promises are concurrent considerations, and will support each other unless one or the other is void: Siddall v. Clark, 89 Cal. 321, 26 Pac. 829. An outstand- ing liability as surety or indorser for another is a good consideration for a promise: Gladwin v. Garrison, 13 Cal. 330. Information possessed by a promisee respecting the title to land is a good consideration for a promise to pay for such information: Lucas v. Pico, 55 Cal. 136. If a cliattel is of no value it is not a good consideration for a contract: Gifford v. Carvill, 29 Cal. 589. Any prejudice suffered is sufficient con- sideration: Golden Gate Iron Works v. Angell, 89 Cal. 643, 27 Pac. 65. A valuable consideration means a pecuniary consideration or its equiva- lent, as distinguished from a good consideration, and has no reference to the adequacy of the price to the value of the property conveyt?d: Clark V. Troy, 20 Cal. 219. Paternal Atlection and Moral Obligation. — Those considerations are now and always jirobably have been, and it is hoped forever will be, considerations sufficient to support any reasonable promise, formal con- tract, or gift. All the foregoing is not actually said, but is clearly implied in Nicolas v. Emery, 109 Cal. 323, 50 Am. St. Rep. 43, 41 Pac. l(iSi); Eraser v. San Friincisco Bridge Co., 103 Cal. 79, 36 Pac. 1037; Barnes v. Barnes, 10 Cal. 418. The moral obligation a person is under to pay a debt barred by statute is a good consideration for a promise: Zellerbach v. Allenberg", 99 Cal. 57, 33 Pac. 786. See, also, McCormick V. Brown, 36 Cal. 108, 95 Am. Dec. 170. If an insolvent, after his dis- charge, expressly promises his creditor to pay his debt, the debt is a sufficient consideration to support the promise: Feeny v. Daly, 8 Cal. 84. In California a written contract imports a consideration: C. C, sees. 1614, 1615; Williams v. Hall, 79 Cal. 606, 21 Pac. 96.5. A written con- tract need not recite a consideration. If the consideration is denied, the plaintiff must establish a consideration sufficient to support his con- tention: Peasley v. McFadden, 6S Cal. Oil, 10 Pac. 179. In Poirier v. Gravel, 88 Cal. 79, 25 Pac. 962. it is said that a written instrument is presumptive evidence of a consideration, and the burden of showing a 132 New Book op Forms. want of consideration sufficient to support it is upon the party seeking to avoid it. The same was said in Eogers v. Schulenburg, 111 Cal. 281, 43 Pac. 899. Signature — Mark. — If the contract is intended to be signed by sevwral persons as parties to it, it does not bind any until all kave signed: Barber v. Burrows, 51 Cal. 404. If a party is to do something in the future in consideration of a conveyance already made to him by the other party, the contract need only to be signed by the party who is to perform thereafter: Luckhart v. Ogden, 30 Cal. 547. If a third person signs a party's name at his request, in his presence, and if he acknowledges the signature to be his own, it is sufficient; and it is the same even if the party was able to write his own name: Harris v. Harris, 59 Cal. 620. The words, ' ' When a person cannot write, ' ' as they appear in sec- tion 14 of the Civil Code, seem to include all persons who are unable to ■mite from any cause, even though they know how to write. Under section 14 of the Civil Code a signature by mark must be written near the mark to show which or what name the mark was intended to repre- sent: Will of Guilfoyle, 96 Cal. 598, 31 Pac. 553, 22 L. E. A, 370. If the instrument contains words of obligation on the part of the maker, he cannot excuse himself by claiming that he signed it without reading: Yoch v. Home Mutual Ins. Co., Ill Cal. 503, 44 Pac. 189. The term "signature" or "subscription" includes mark when the person cannot write, his name being written near it, and written by a person who writes his own name as a witness: C. C. P., see. 14. In Duplicate. — A contract to convey land executed in duplicate is one instrument, which does not take effect until one of the duplicates is delivered to the party to whom the land is to be conveyed: Ivey v. Kern Co. Land Co., 115 Cal. 196, 46 Pac. 926. Bevenue Stamp. — The omission of a United States internal revenue stamp cannot be set up as a defense in a state court to an action on a contract: Thomasson v. Wood, 42 Cal. 416. Options. — An option given to a person who proposes to sell land upon certain terms, of which option he gave the person signing it no notice of acceptance, and if no consideration was paid for the option, and which he is free to exercise or not, is a mere continual proposal which may be withdrawn by the maker at any time before notice of accept- ance is given; and after notice of withdrawal the option cannot be exercised: Brown v. San Francisco Sav. Union, 134 Cal. 448, 66 Pac. 592. Retraction of Offer. — A contract to deliver anything of value and as much as is wanted is nothing but an offer, and may be withdrawn before acceptance, but if the person to whom the offer is made names the quan- tity he will take, both parties are bound: Keller v. Ybarra, 3 Gal. 147, Such offers must be accepted at once. It has been held that six months' delay is unreasonable: Roberts v. Evans, 43 Cal. 380. See, also, Harvey v. Duffey, 99 Cal. 401, 33 Pac. 897. Delivery. — The words "has executed" or has "executed unto," when applied to instruments in writing, imports both making and delivery: Bagley v. Administrator of McMickle, 9 Cal. 430; Le Mesnager v. Ham- ilton, 101 Cal. 532, 40 Am. St. Rep. 81, 35 Pac. 1054. The word "execu- tion" of a written instrument includes its delivery: Clark v. Child, 66 Cal. 87, 4 Pac. 1058. A finding that a lease was executed includes its delivery: Oneto v. Restano, 89 Cal. 63, 20 Pac. 788. If it is apparent that the word "execute" was used as the mere synonym of "sign," delivery is not imported: Davidson v. Ellmaker, 84 Cal. 21, 23 Pac. 1026. Supplemental Contracts — Consideration. — A supplemental agreement either adding to or varying the terms of the original contract, so aa to Contracts. 133 lmpof3e new and onerous burdens upon one of the parties, requires a consideration to support it. A favorable modification or a reK-ase of previous obligations would be a consideration: Main St. R. R. Co. v. Los AnjTclos Traction Co., 129 Cal. 301, 61 Pac. 937. Negligent Omissions. — If the parties are upon equal footing, and there is no fraud, and no relations of confidence, and if the means of knowl- edfje are equally o[ien to both, an obligor who nrrriij^cntly omits to read the contract or to have it read cannot be relieved from his folly by the courts: Placer County Bank v. Freeman, 126 Cal. 90, 58 Pac. 388. No. 157. — Contract — -Not Special. This agreement, made the nineteenth day of June, in the year of our Lord one thousand nine hundred and five, between J. D., of the city and county of San Francisco, state of California, the party of the first part, and R. R., of tJic same place, the party of the second part, witnesseth : That the said party of the first part, in consideration of the covenants, on the part of the said party of the second part, here- inafter contained, hereby covenants, with the said party of the second part, that the said party of the first part will dcliTcr to the said party of the second part, at his storehouse in said city and county of Sou Francisco, one thousand (1,000) bushels of tvheaf, of good merchantable quality, on or before the tenth day of October, A. D. 1905. And the said party of the second part, in consideration of the said covenants, on the part of the said party of the first part, hereinbefore contained, agrees to and with the said party of the first part, that the said party of the second part will pay to the said party of the first part, or his order, one dollar in United States gold coin, for each and every bushel of said wheat so dclivcr<:d, immediately on the completion of the delivery of said one thousand bushels of wheat in good order and condition, as aforesaid. And for the true and faithful performance of all and every of the said covenants, the said parties to these presents bind them- selves, each unto the other, in the penal sum of three hundred (300) dollars, gold coin of the United States of America, as fixed, settled, rnd liquidated damages, to be paid by tlie failing party, to the other, his Jicirs or assigns. No. 158. — Builder's Contract. This agreement, macle the tenth day of January, (me thousand nine hundred and five, between H. W., the party of the first part, and /. S., the party of the second part : First. The said party of the second part does hereby promise and agree, with and to the said party of the first part, his execu- tors, administrators, and assigns, that he, the said party of the second part, will, for the consideration hereinafter mentioned on 134 New Book of Forms. or before the third day of January, ipo6, well and truly build, erect and finish the building hereinafter described, conformable to the drawings and specifications made by C. F., architect, and signed by the parties, and hereunto annexed, within the time aforesaid, in a good workmanlike and substantial manner, to the satisfaction and under the direction of the said C, to be evidenced by a writing or certificate under the hand of the said F., and, also, shall and will find and provide good and sufficient materials, of all kinds whatsoever, as shall be proper and sufficient for com- pleting and finishing all the foundations, exsavations, building materials of every description used in or about it so as to make it a perfect building according to said drazvings and specifications and other works of said building mentioned in the said drawings and spe educations for the sum of sixteen thousand seven hun- dred dollars. And the said party of the first part does hereby covenant, promise and agree with and to the said party of the second part, that when said building is completed, the said party of the first part will in consideration of the covenants and agree- ments being strictly performed and kept by the said party of the second part as specified w'ell and truly pay, or cause to be paid, unto the party of the second part, the said sum of sixteen thousand seven hundred dollars of the United States of America. In the manner following: When the walls are up and ready for the roof, one-fourth of the contract price ; when the roof is on and the Hoars laid, one-fourth of the contract price; when the building is finished, one-fourth of the contract price, and within sixty days from the date of the third payment the balance due to be paid. Provided that in each of the said cases a certificate be obtained and signed by the said architect. And it is hereby further agreed by and between the said par- ties: First. The specifications and drawings are intended to co- operate, so that any works exhibited in the drawings and not mentioned in the specifications, or vice versa, are to be executed the same as if it were mentioned in the specifications and set forth in the drawings, to the true meaning and intention of the said drawings and specifications. Second. The contractor, at his own proper cost and charges, is to provide all materials, labor and all other things of every de- scription, for the performance of the several erections. Third. Should the owner, at any time, order alterations, de- viations, additions or omissions, from the said contract, specifi- cations or plans, he shall be at liberty to do so and the same will be added to or deducted from the amount of the said contract price, as the case may be, by a fair and reasonable valuation. Fourth. Should the contractor, at any time during the prog- ress of said works, refuse or neglect to supply a sufficiency of ma- CONTR/\CTS. 135 terials or workmen, the owner shall have the power to provide materials and workmen (after three days' notice in writing given) by leaving the writing at the last known residence or place of business of the contractor, to finish said works, and the expenses of finishing said works shall be deducted from the amount of the said contract price. Fifth. Should any dispute arise respecting the meaning of the drawings or specifications, the same shall be decided by the archi- tect, builder and owner, and their decision shall be final, but should any dispute arise respecting the v?lue of the extra work or works omitted, the same shall be valued by two men — one selected by the owner, and the other by the contractor — and in case they can- not agree, these two shall have power to name an umpire, whose decision, if agreed to by one of the two shall be final. Sixth. The owner shall not, in any manner, be answerable or accountable for any loss or damage that shall or may happen to the said works, for any part or parts thereof respectively, or for any of the materials or other things used and employed in finish- ing and completing the same. Seventh. If delay in completing said structure is caused by strikes, or by the acts of God, the time lost thereby shall be added to the time for completion of this contract. Eighth. All payments shall be upon the certificate of the archi- tect, and this contract is completed when the work is finished in accordance with the original plans as modified by alterations of the original plans. No. 159. — Bond (Attaches to Builder's Contract). Know all Men by These Presents : That we, J. S., as prin- cipal, and H. B. and J. B. are held and firmly bound unto H. W. in the sum of ten thousand dollars, crold coin of the United States of America, to be paid to the said H. IV., for which payment well and truly to be made, we bind ourselves firmly by these presents. Sealed with our seals and dated the tenth day of January, one thousand nine hundred and tiz'e. The condition of the above obligation is such, that [state the substance of the contract, time of payments, amounts, etc.], then the above obligation to be void, otherwise to remain in full force and virtue. No. 160. — Contract — Building. This agreement, made the tenth day of July, one thousand nine hundred and four, by and bctzvcen J . D., of Amador Cit\, in the county of Amador, and state of California, of the first part, and R. R., of the said Amador City, of the second part, in these words: The said party of the second part covenants and agrees to and with the said party of the first part, to make, erect, build, and 136 New Book of Forms. finish, in a good, substantial, and workmanlike manner a tu'O- story brick dzvelling-housc, on the lot of land situate in said county, and described as follows: [Description of lot] Agree- able to the drafts, plans and specifications hereunto annexed, of good and substantial materials, by the iirst day of January next. And the said party of the first part covenants and agrees to pay unto the said party of the second part, for the same, the sum of tivo thousand dollars, gold coin of the United States, as follows: The sum of one thousand dollars when the building is inclosed and the roof put on, and the remaining one thousand dollars when the building is completed. And for the true and faithful performance of all and every of the covenants and agreements above mentioned, the parties to these presents covenant and agree, each with the other, that the sum of one thousand dollars, gold coin of the United States, as fixed, settled, and liquidated damages, shall be paid to the other by the failing party. NOTE. — Under head "Liens," see full notes relating to such con- tracts. No. 161. — Contract with a Mason. This agreement, made the nijtth day of September, A. D. one thousand nine hundred and four, between A. B., of Oakland, Ala- meda county, and C. D., of the city and county of San Francisco, witnesseth : That the said C. D., for the consideration hereinafter men- tioned, promises and agrees, to and with the said A. B., that he will do and perform, by himself or persons in his employ, in a good and workmanlike manner, and with materials to be fur- nished by the said A. B., all the mason and plastering work to be done in and about the erecting and building a new dwelling- house on the fifty-vara lot No. 124 of the said A. B., at -northeast corner of California and Webster streets, in the city of San Fran- cisco, according to the plans and specifications hereto annexed ; and, also, that he will use the utmost care in working up the materials to be furnished by the said A. B., as aforesaid, to the best advantage for tlie said A. B., and that he will complete the said work on or before the first day of December, ipo4. And the said A. B., in consideration of the premises, agrees to furnish and provide good and sufficient materials for the said work, at such time or times as the said C. D. may request; and to pay, in gold coin of the United States, the said C. D., for all such work as shall be performed by him or his servants in and about the said new dwelling-house, ornamental work excepted, on the completion of the same, at and after the rate of fifty cents per yard of three feet square, and the stmi of six hundred dollars Contracts. 137 for all the ornamental work clone or performed in and about the said dwelling-house — it being expressly understood and agreed, that no extra charge is to be demanded or allowed for corners, arches, jambs, joints, fireplaces, or any other kind of work not strictly ornamental, but all the work is to be measured as plain, except the ornamental work to be paid for, as aforesaid, in gross. No. 162. — Contract Forming Copartnership. Articles of copartnership, made and entered into the hventy- Urst day of December, in the year of our Lord one thousand nine hundred and Hve, between /. H., of the city and county of San Francisco, state of California, C. H., of said city and county, and J. S., of the same place. The said parties above named have agreed, and by these pres- ents do agree, to become copartners in business together, under and by the name, firm, and style of "//. & Co.," in the business of groceries and provisions, and in buying, selling, and vending all sorts of goods, zvares, and merchandise to said business be- longing, and to occupy the store at No. 21^ Battery street, in said city and county of San Francisco: their copartnership to com- mence on the tirst day of July, ipo6, and to continue fii'e years thence next ensuing, fully to be completed and ended, and to that end and purpose the said parties have delivered in as capital stock the sum of thirty thousand (^0,000) dollars. United States gold coin, share and share alike, to be used and employed in common between them, for the support and management of the said busi- ness, to their mutual benefit and advantage. And it is agreed, by and between the said parties, that at all times during the continuance of their copartnership, they and each of them will give their attendance, and do their and each of their best endeavors, and to the utmost of their skill and power exert themselves, for their joint interest, profit, benefit and ad- vantage, and will buy and sell merchandise with their joint stock, and the increase thereof, in the business aforesaid ; that they shall and will, at all times during their copartnership, bear, pay. and discharge, equally between them, all rents and other exjienses that may be required for the support and management of the said business ; that all gains, profits, and increase that shall come, grow or arise from or by means of the said busines*. shall be divided between them, share and share alike ; and all loss that shall happen to their said joint business, by bad debts, or otherwise, shall be borne and paid equally betvveen them ; that there shall be kept, at all times during the continuance of their copartnership, perfect, just and true books of accounts, wherein each of the said copart- ners shall enter and set down, as well all money by them, or either of them, received, paid, laid out, and expended in and about the said business as also all the goods, wares, commodities and mer- N 1^8 New Book of Forms. / chandise, by them or either of them bought or sold, by reason or on account of the said business, and all other matters and things whatsoever, to the said business and management thereof in any wise belonging ; which said books shall be used in common between the said copartners, so that either of them may have access there- ( to without any interruption or hindrance of the other; that the said copartners, once in each year, during the continuance of the said copartnership, as aforesaid (to wit, on the first day of Jann- . ary, in each year), or oftener if necessary, shall make, yield, and •^ render, each to the other, a true, just and perfect inventory and account of all the profits and increase by them, or either of them, made, and of all loss, by them, or either of them, sustained ; and also, of all payments, receipts and disbursements and of all other things by them made, received, disbursed, acted, or sufifered," in i^ their said business ; and the same account being so made they shall and will clear and adjust, each to the other, at the time, their just share of the profits so made as aforesaid [that during the continuance of the said copartnership, neither of them shall or will indorse any 'note, or otherwise become security for any person or persons zvhornsoever, without the consent of the other said copartner] ; that at the end, or other sooner determination of ;their copartnership, the said copartners, each to the other, shall and will make a true, just and final account of all things relating to their said business; and in all things truly adjust the same; and that all and every stock and stocks, as well as the gains and increase thereof, which shall appear to be remaining, either in money, goods, wares, fixtures, debts or otherwise shall be divided between them, share and share alike. No. 163. — Contract — Copartnership Between Merchants. Articles of agreement, made and entered into this sixth day of June, ipo6, between A. B., of, etc., of the one part, and C. D., of etc., of the other part, witnesseth as follows: The said A. B. and C. D. have joined, and by these presents do join themselves, to be copartners together, in the business of gen- eral country merchants, and all things thereto belonging; and, also, in buying, selling, and retailing all sorts of wares, goods, merchandise, and commodities, and all kinds of produce usually kept and sold in a country store, and in such commission business as may appertain to the same ; which said copartnership is to be conducted under the name, style, and firm of B. & D., at the town of Dutch Flat, county of Placer, state of California, and shall continue from the first day of July, igo6. for and during, and unto the end and term of two years, from thence next ensu- ing, fully to be complete and ended. And to that end and purpose the said parties to these presents have, the day of the date hereof, delivered in as stock the sum Contracts. 139 of one thousand dollars, share and share alike, to be used, laid out. and employed in common between them for the management of the said business, as aforesaid, to their mutual benefit and ad- vantage ; and it is agreed between the said parties to these pres- ents, that the capital stock of the firm hereby constituted shall be made and kept up to the sum of one thousand dollars, share and share alike ; that the same may at any time be reduced or ex- tended by agreement between the parties hereto; and that the said capital stock, together with all credits, goods, wares, or com- modities bought or obtained by the said firm, by barter or other- wise, shall be kept, used, and employed in and about the business aforesaid ; and, for that purpose, each partner shall have power to use the name of the firm, and to bind the same, in making contracts and purchasing goods at the city of San Francisco or elsewhere, and in otherwise trading, buying, and selling on ac- count of the said firm, and for the benefit and behoof thereof, and not otherwise ; provided however, that neither party shall contract liabilities in the name and on the credit of the firm, in purchasing and replenishing their stock of goods, and merchan- dise, to exceed the sum of Hve hundred dollars, without the con- sent of the other partner ; and, also, that neither of the said co- partners shall or will, during the said term, exercise or follow the trade or business of merchandising, as aforesaid, in the said county of Placer, for his private benefit or advantage ; but shall, at all times, do his best endeavor, in and by all lawful means, to the utmost of his skill and power, for the joint interest, proat, benefit, and advantage of the firm aforesaid ; and truly employ, buy, sell, and merchandise with the stock aforesaid, and the in- crease and profit thereof, in the business of merchants aforesa'd; and, also, that the said parties shall and will, at all times during the said copartnership, bear, pay, and discharge equally between them all rents and other expenses. No. 164. — Contract to Renew Partnership, to be Indorsed on Original Article. \^^ereas, the partnership formed by and mentioned in the within article of agreement has this day expired {or, will ex- pire on the Urst day of July next] by the limitations contained therein ; it is therefore hereby agreed, that the same shall be corn tinued, on the same terms, and with all the provisions and re- strictions in said agreement mentioned, for the further term of four yea,rs from tliis date [or, from the Urst day of October, igo6.\ I4.0 New Book of' Forms. No. 165. — Contract of Dissolution of Partnership to be In- dorsed on the Original Articles, Py mutual consent of the undersigned, the parties to the with- in agreement, the partnership thereby formed is wholly dissolved, except so far as it may be necessary to continue the same for the final liquidation and settlement of the business thereof; and said agreement is to continue in force for such purpose until such final liquidation and settlement be made, and no longer. No. 166. — Contract of Partnership. State of California, City and County of San Francisco, — ss. We, the undersigned, do hereby certify that we are partners transacting business in this state, at the city and county of San Francisco, under the firm name and style of A. L. B. & Co.; that the names in full of all the members of such partnership are H. H. B. and A. L. B., and that the places of our respective resi- dences are set opposite our respective names hereto subscribed. No. 167. — Contract to Dissolve Partnership. The firm heretofore existing under the name and style of S. & A. L., doing business in the city of Los Angeles, is this day dis- solved by mutual consent, S. L. having purchased the entire in- terest of A. L. in the concern. No. 168. — Contract to Dissolve Partnership and Notice of Dis- solution. The copartnership heretofore existing under the name and style of L. & B., in the city of Sacramento, is dissolved by mutual consent. All persons who are indebted to the undersigned are respectfully requested to come forward and make payment im- mediately. No. 169. — Contract for Sale of Real Estate. I hereby agree to sell to C. IV., at any time within sixty days from the date hereof, Block No. j-?/ of the zvestern addition, in the city of Downieville, county of Sierra, state of California, for the sum of seventy-five thousand dollars, cash, on delivery of deed, and which deed shall contain the usual covenants. Within ten days from date I agree to furnish the said C. W. an abstract of title to said land certified by S. B. D., Esq., searcher of records. No. ^j6 Courthouse Block, Downieville. Contracts. 141 The said C. IV. has deposited with me one thousand dollars, which I will credit him with on the purchase price, should he coniplete the purchase ; otherwise I will retain the said one thou- sand dollars as liquidated damages, as it will be extremely diffi- cult to fix my actual damage. I accept the foregoing agreement, and will abide in all things by its terms. NOTE. — In all states, an agreement on the part of the seller of real property to give the usual covenants binds him to insert in the grant covenants of "seisin," "quiet enjoyment," "further assurance," "gen- eral warranty," and "against encumbrances": Cal. C. C, sec. 1733. The covenants mentioned above should be in substance as follows: "The party of the first part covenants with the party of the second part that the former is now seised in fee simple of the property granted; that the latter shall enjoy the same without any lawful disturbance; that the same is free from all encumbrances; that the party of the first part, and all persons acquiring any interest in the same through or for him, will, on demand, execute and deliver to the party of the second part, at the expense of the latter, any further assurance of the same that may be reasonably required; and that the party of the first part will warrant to the party of the second part all the said property against every person lawfully claiming the same": Id., sec. 1734. No. 170. — Contract for Sale of Real Estate. This agreement, made and entered into the ninth day of Sep- tember, IQ06, between G. A., of San Diego, county of San Diego, and state of California, the party of the first part, and D. J., of the same place, the party of the second part, witnesseth: That the said party of the first part, in consideration of the covenants and agreements on the part of the said party of the second part, hereinafter contained, agrees to sell and convey unto the said party of the second part, and said second party agrees to buy. all that certain lot and parcel of land, situate in the city of San Diego, county of San Diego, and state of California, bounded and described as follows, to wit: [Description.] For the sum of fifty thousand (^0,000) dollars, gold coin of the United States; and the said party of the second part, in consideration of the premises, agrees to pay to the said party of the first part, the said sum of Hfty thousand (^0,000) dollars in United States gold coin, as follows, to wit : Twenty-five thousand (25,000) dollars. United States gold coin, on the execution of tJiis contract; five thousand dollars on the fourth day of January, igo6, and the balance of twenty thousand dollars with interest thereon at the rate of nine per cent per annum from this date, on the tenth day of September, igoj. And the said party of the secand part agrees to pay all state, city, and county taxes, or assessments of whatsoever nature, whicli are or may become due on the premises above described. 142 New Book of Forms. In the event of a failure to comply with the terms hereof by the said party of the second part, the said party of the first part shall be released from all obligation in law or equity to convey said property, and the said party of the second part shall forfeit all right thereto. And the said party of the first part, on receiving such pay- ment, at the time and in the manner above mentioned, agrees to execute and deliver to the said party of the second part, or to his assigns, a good and sufficient deed for the conveying and assuring to said party of the second part, the title to the above- described premises free and clear of encumbrances. And it is understood that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators, and as- signs of the respective parties, and that said party of the second part is to have immediate possession of said premises. Withdrawal of Deposit. — If the owner is not legally bound to convey under his contract, a proposed purchaser may withdraw the full amount of his deposit before a lawful contract is consummated: Bogart v. ^Crosby, 91 Cal. 278, 27 Pac. 603. Partial Payment and Delivery. — The vendor of land is the party to be charged, and his signature to the contract to sell, and if the contract is delivered to the purchaser, who makes a partial payment, binds both parties: Scott v. Glenn, 98 Cal. 168, 32 Pac. 983. See, also, McDonald v. Huff, 77 Cal. 279, 19 Pac. 499. See "Deeds." No. 171. — Agreement with Agent or Broker to Sell Land. It is agreed that S. B., shall, as my agent, contract that / will sell the following described land to any purchaser found by him within thirty days from date hereof, viz., situated in the city and county of San Francisco, state of California, and known as iifty- vara lot No. / in Block No. /dj, of the Western addition. The price to be not less than ten thousand dollars in gold coin of the United States. I agree to furnish to the purchaser within ten days after a deposit of ttvo hundred and fifty dollars is made with me or the said vS". B., an abstract of title to said land, certified to by /. and B. B. C, searchers of records in said city and county. The said property to be conveyed free of all encumbrances. The said property shall remain in the hands of the said S. B. exclu- sively for thirty days from date ; and if he sells the same within said time, / will pay him a commission of two per cent upon the purchase price. All advertising expenses attending the sale to be paid by the said S. B. NOTE. — The law of California requires an agreement authorizing or employing an agent or broker to purchase or sell real estate for compen- sation or^'a commission, to be in writing, subscribed by the party to be charged or his agent. C0NTIL\CTS. 143 No. 172.— Agreement for the Sale of Animals. This agreement, etc., witnesseth: That, in consideration of the agreement of the said R. R. hereinafter contained, the said /. D. agrees to sell and deliver, on the first day of June next, to the said R. R., at his store in Sonora, ofie yoke of four year old oxen. And the said R. R., in consideration thereof, agrees to pay to the said /. D. sixty dollars, gold coin of the United States, 'im- mediately upon delivery thereof. No. 173. — Contract (Broker's) of Sale. Date. Sold this day for account of A. B. C. to E. F. G. the following described premises situate in the city and county of San Fran- cisco, state of California, to zmt: [Description] 'for the sum of $10,000 in United States gold coin, on the following terms, to wit : One thousand dollars cash deposit upon the signing of this contract, and $p,ooo cash upon delivery of deed to purchaser. The taxes for the year jpo6 to be paid by the seller. Received from E. F. C, $1,000 as a deposit on above sale, to be refunded in case a good title cannot be given by the seller, or in case this contract is not approved by the seller, twenty days to be allowed for search of title. In case the title proves defective, the necessary expenses of search and of examination of title to be paid by the seller, abstract to be furnished dozvn to date hereof, by seller. [The amount to be expended is frequently agreed upon by all parties to the con- tract.] No. 174. — Landlord's Contract. This is to certify, that / have let and rented unto /. B., the house and lot above mentioned, designated and knozvn b\ the number 714 Washington street, San Francisco, and the sole and uninterrupted use and occupation thereof, for the term of ten (10) months from the tzventy-first day of December, igo6, at the monthly rent of Hfty (jo) dollars, payable in gold coin' oi the United States of America, monthly in advance, on the tzvcnty- iirst day of each and every month. The said premises are not to be used or occupied for any business deemed extrahazardous on account of fire, nor shall the same, or anv part thereof be let, or underlet, without the written consent of the landlord, un- der the penalty of forfeiture and damages. NOTE.— In California a tenant may expend one month's rent for repairs, if he notifies the landlord of dilapidations which he should re- pair, and which he neglects to do: C. C, 1942. 144 New Book of Forms. No. 175. — Tenant's Contract. This is to certify, that / have hired and taken from R. D., all that certain house and premises situate in the city and county of San Francisco, state of California, and designated and knozvn by the number ^14 Washington street, said house containing eight rooms, besides basement, for the term of ten months from the tzventy-Hrst day of December, 1904, at the monthly rent of fifty (§0) dollars, payable in gold coin of the United States of Amer- ica, monthly in advance, on the twenty-first day of each and every month. And / do hereby promise to make punctual payment of the rent in manner aforesaid, and to quit and surrender the said premises at the expiration of the said term to said lessor, his agent, attorney, or assigns, in as good state and condition as rea- sonable use and wear thereof will permit (damages by the ele- ments alone excepted), and not to let or underlet the whole or any part of the said premises without the written consent of the landlord, under the penalty of forfeiture and damages; and also not to occupy the said premises for any business deemed extra- hazardous on account of fire, without the like consent, under the like penalty ; nor will / expend any money due for rent for re- pairs, without the written consent of the landlord. No. 176. — Contract by Surety — Payment of Rent. In consideration of the letting of the premises above described, and for the sum of one dollar, I do hereby become surety for the punctual payment of the rent, and performance of the cove- nants, in the above-written agreement mentioned, to be paid and performed by C. D., as therein specified ; and if any default shall at any time be made therein, I do hereby promise and agree to pay unto the landlord in said agreement named, the said rent, or any arrears thereof that may be due, and fully satisfy the conditions of the said agreement, and all damages that may ac- crue by reason of the nonfulfillment thereof, without requiring notice or proof of demand being made. No. 177. — Contract — Debtor with Creditors. Know all Men by these Presents: That A. B., of Jackson, county of Amudor, state of California, is indebted unto us, his said several creditors, in divers sums of money; but by reason of sundrv losses, happened unto the said A. B., he is become un- able to satisfy our demands, and therefore we, the said creditors, have resolved and agreed to undergo a certain loss, and to accept of twenty cents, gold coin of the United States, for every dollar CONTR.\CTS. M5 owing by the said A. B. to us, the several and respective cred- itors aforesaid, to be paid, in such gold coin, in full satisfaction and discharge of our several and respective debts: Now we, the said creditors of the said A. B., do, for ourselves, severally and respectively, and for our several and respective heirs, executors, and administrators, promise and agree, to and with the said A. B., by these presents, that we, the said several and respective creditors, shall and will accept of and from the said A. B., for each and every dollar that the said A. B. does owe to us, the said several and respective creditors, the sum of Hvcnty cents, payable in gold coin of the United States, in full discharge and satisfaction of the several debts and sums of money that the said A. B. does owe and stand indebted unto us; to be paid unto us, the said several and respective creditors, within the time or space of six months next after the date of these pres- ents; and we, the said several and respective creditors, do sev- erally and respectively covenant, promise, and agree, to and with the said A. B., that the said A. B. shall and may, from time to time, and at all times, within the said time or space of twelve months next ensuing the date hereof, assign, sell, or otherwise dispose of, all his goods and chattels, wares and merchandise, at his own free will and pleasure, for and toward the pa>Tnent and satisfaction of the said twenty cents for every dollar the said A. B. does owe and is indebted unto us, as aforesaid; and that neither we, the said several and respective creditors, nor any or either of us, shall or will, at any time or times hereafter, sue, arrest, molest, or trouble the said A. B., or his goods and chat- tels, for any debt or other thing, now due or owing to us, or any of us, his respective creditors ; so as the said A. B. well and truly pay, or cause to be paid, in such gold coin, the said sum of tzventy cents for every dollar he does owe and stand indebted to us, respectively, within the said time or space of six months next ensuing the date hereof; and all and every of the grants, covenants, agreements, and conditions, herein contained, shall ex- tend to and bind our several executors, administrators, and as- signs. NOTE. — The account of each creditor's claim should be given in a schedule annexed, set opposite the respective name of the creditor. No. 178. — Option to Purchase Land. Received of A. B. C. the sum of Hve hundred dollars, as part payment for the following described property situated in the county of Alameda, state of California, and described as follows, to wit: [Description.] The entire price to be paid for said above- described property is $10,000, and to be paid as follows: Xine thousand five hundred dollars to be paid within thirty daxs after S. B. D.. attorney at law of the city of Oakland, county of Alo- New Forms — 10 146 New Book o^ Forms. meda, notifies said A. B. C. that the title to said land is perfect in B. F. G. Said attorney to make his report on said title tvithin ten davs from the date he receipts for the abstract of said title. A deed to be executed and delivered by the said B. F. G. to said A. B. C., or his assigns, on or before the teyith day of May, A. D. ipo6. Provided, however, that the payment of $9,500 is paid at said date, but if not paid on or before the said tenth day of May, A. D. igo6, then this contract to be of no effect, and in that event the said $300 to be retained by said B. F. G. as liquidated damages. Time is of the essence of this contract. No. 179. — Contract to Sell or Assign the Copyright in a Book. This agreement, made the fifteenth day of, etc., between A. B., of, etc., and C. D., of, etc., bookseller and publisher, witnesseth: That the said A. B. agrees to sell, and does hereby sell, to the .said C. D., all his copyright, title, interest,' and property, in and to a certain book, written and compiled by the said A. B., entitled [title of the book at length], and entered, and copyright secured by the said A. B., in the office of the Librarian of Congress, at Washington, District of Columbia, on the sixth day of July, in the year ipod, and the said A. B., also agrees to prepare and furnish a fair copy of the said work to the printer to be em- ployed by the said C. D., and to superintend the printing, and examine and correct the proofs thereof as fast as furnished, and to make and complete a full and correct index therefor in due time. In consideration whereof, the said C. D. agrees to pay unto the said A. B. the sum of one thousand dollars, gold coin of the United States, on the first day of August, igo6. NOTE. — Assignment of copyright must be in writing: Act of Congress July 8, 1870. No. 180. — Contract — Cultivate Land on Shares. This agreement, etc., witnesseth: That /. D. agress with R. R. that he will properly plow, harrow, till, fit and prepare for sowing, according to the rules of good husbandry, all that certain field of ground belonging to the said R. R., which field lies, etc.; [Description of the field.] Containing about fifty acres, and to sow the same with good, clean wheat, finding one-half of the seed wheat necessary there- for, on or before the tenth day of January, 1905; and that he will at the proper time cut, harv^est, and thrash the said zvheat, and properly winnow and clean the same, and deliver the one- half part of the said wheat to the said R. R., at his barn, on his premises, in the said city of Oakland, near his dwelling-house, Contracts. 147 within ten days after the same shall have been cleaned ; and will carefully stack the one-half part of the straw on the premises of the said R. R., near to his barn aforesaid. And the said R. R., in consideration of the foregoing agree- ment, promises and agrees, to and with the said /. D., that he may enter in and upon the said field for the purpose of tilling and sowing the same, and of harvesting the crop; and free in- gress and egress have and enjoy for the purposes aforesaid ; and that he will furnish to the said /. D. one-half part of the seed xvheat necessary to sow the same, on or before the first day of January next, and permit the said /. D. to thrash and clean the wheat upon the premises of the said R. R. No. 181. — Contract not to Sue. Know all Men by these Presents: That whereas /. D., of the city of Oakland, in the county of Alameda, and state of Cali- fornia, is justly indebted to us, R. R., J. S., and P. B., in divers sums of money, which the said /. D. is unable to pay: Now, we and each of us, for ourselves, our and each of our heirs, executors, administrators, and assigns, for and in consid- eration of the agreement and covenant of the said /. D., here- inafter contained, do covenant and. agree with the said /. D., that we will not, nor will either or any of us, at any time during two years from the date hereof, sue, prosecute, arrest, molest, or trouble the said /. D., in respect to or on account of any debts now by him due or owing to us, or any or either of us. And the said /. D., in consideration of the foregoing covenant and agreement, for himself, his heirs, executors, and administra- tors, covenants and agrees with the creditors aforesaid, that he will faithfully apply all moneys, property, and effects that he may earn or procure during the said term of tivo years to the payment, in gold coin of the United States, of his debts owing to the cred- itors aforesaid, in proportion to the amount due and owing to each. CORONER. No. 182. — Coroner's Certificate of Death. Office of the Coroner of the City and County of San Francisco, State of California. I, J. G., coroner of the city and county of San Francisco, state of California, do hereby certify that I held an inquisition upon the body of C. D., a native of Ireland, aged forty-four years, at 148 New Book ov Forms. A^o. 636 Washington street, on the tenth day of July, ipo6. Ver- dict of the jury: Death from mule stroke. And I further certify, that / caused to be interred his body at ''Home of Peace" Cemetery, in the county of San Mateo, on the twelfth day of July, ipo6. No. 183. — Coroner's Jury — Inquisition by. State of California, City and County of San Francisco, — ss. Before /. G., Coroner. In the Matter of the Inquisition upon the Body of A. B., Deceased. We, the undersigned, the jurors summoned to appear before /. C, the coroner of the city and county of San Francisco, at [state place], on the first day of May, ipo6, to inquire into the cause of the death of A. B. [or, of a person found drowned in the bay of San Francisco ; or, found lying dead in the street ; or, as the case may he, whose name is unknown], having been duly sworn according to law, and having made such inquisition, after inspecting the body, and hearing the testimony adduced, upon our oaths, each and all do say, that we find the deceased was named A. B., was a native of Ireland, aged about forty years; that he came to his death on the first day of May, igo6, in tliis county, by drowning, having been found in the Bay of San Francisco, at or near the Washington street wharf, and whether the same was accidental or intentional we have no means of knowing [or, by jioison administered willfully by his own hand ; or, by the hand of, or by the means or instigation, of some other person, to the jury unknown ; or, and we further find, that we believe C. D. to be the person by whose act the death of the said A. B. is occasioned — stating the facts, as the case may be.] All of which we duly certify by this inquisition, in writing, by us signed, this second day of May, igo6. NOTE. — The verdict of coroner's jury must be signed by each and every juror: See Pen. Code, sec. 1.514. Duties of coroners prescribed by sections 1510 to 1519, Penal Code, and sections 4285 to 4290, Political Code. No. 184. — Coroner's Subpoena. State of California, City and County of San Francisco, — ss. The People oe the State of California Send Greeting: To R. S. and /. R. : We command you, that, all and singular business and excuses being laid aside, you be and appear before Coroner. 149 the undersig-ned, coroner of the city and comity of San Francisco, stale of California, at No. 863 Market street, on the thirty-first day of December, igo§, at ten o'clock A. M., then and there to testify and give evidence in a certain inquisition now pending be- fore said coroner; and herein fail not, or answer the contrary at your peril. Given under my hand, etc. No. 185. — Coroner's Summons — Juryman. State of California, City and County of San Francisco, — ss. The People of the State of California Send Greeting: To /. S.: We command you, that, all and singular business and excuses being laid aside, you be and appear before the under- signed, coroner of the city and county of San Francisco, state of California, at No. 86^ Market street, on the thirty-first day of December, igo6, at ten o'clock A. M., then and there to serve as a juror in a certain inquisition now pending before said coroner; and herein fail not, or answer the contrary at your peril. No. 186. — Coroner's Warrant. State of California, City and County of San Francisco, — ss. The People of the State of California to any Sheriff, Con- stable, Marshal, or Policeman in this State : An inquisition having been this day found by a coroner's jury, before me, stating that A. G. has come to his death by the act of /. D., by criminal means: You are therefore commanded forth- with to arrest the above-named /. D., and take him before the nearest or most accessible magistrate in this county. No. 187. — Coroner's Subpoena. State of California, City and County of San Francisco, — ss. The People of the State of California Send Greeting: To R. S. and /. R.: We command you. that, all and singular business and excuses being laid aside, you be and appear before the undersigned, coroner of the city and county of San Francisco, state of California, at Hall of Justice, on the thirty-first day of December, ipo^, at ten o'clock A. M., then and there to testify and give evidence in a certain inquisition now pending before said coroner; and herein fail not, or answer the contrary at your peril. i^o New Book of Forms. No. 1 88. — Oath to Coroner's Jury. You and each of you do solemnly swear that you will truly in- quire into the cause of the death of the person whose body is now lying here [or, "whose body you have just viewed"], who he was, when, where and by what means he came to his death, and into the circumstances attending his death, and render a true verdict thereon, according to the evidence afforded you, or arising from the inspection of the body. So help you God. No. 189. — Oath of Witness Before Coroner's Inquest. You do solemnly swear [or, "affirm"] that the evidence you shall give upon the inquest now pending, concerning the death of A. B. [or, "the person now lying here," or, "the person upon whom inquisition is being made"], shall be the truth, the whole truth, and nothing but the truth. So help you God. No. 190. — Coroner's Certificate of Death. Office of the Coroner of the County of Napa. I, C. D., coroner, do hereby certify, that I held an inquisition upon the body of A. B., a native of C, aged Y. H. Gou) AND Silver Mining Company. — PlacerznUe, El Dorado County, California. The annual meeting of the stockholders of the above company will be held at the office, 52S Montgomery street, San Francisco, on Tuesday, August 10, 1905, at five o'clock P. M., for the elec- tion of five directors for the ensuing year. Every stockholder is requested to be present in person or by proxy. 164 New Book of Forms. No. 219, — Notice of Annual Meeting — Another Form. B. U. Gold and Silver Mining Company. — San Francisco Dis- trict, Territory of Arizona. Notice is hereby given that the £rst annual meeting of the stockholders of the above-named company will be held at the office of the company, No. yo2 Washington street, in the city of San Francisco, on Wednesday, the first day of August, ipo§, at tzvo o'clock P. M., for the election of five directors for the ensuing year, and transaction of such other business as may come before them. No. 220. — Notice of Annual Meeting. The regular annual meeting of the stockholders of the A. O. Company will be held at the office of the company, San Francisco, California, on Tuesday, the fourteenth day of February, igoj, at the hour of ten o'clock A. M., for the purpose of electing a Board of Directors to serve for the ensuing year, and the transaction of such other business as may come before the meeting. Transfer books will close on Thursday, February Qth, at j o'clock P. M. NOTE. — California, C. C, sees. 301, 302. No. 221. — Notice of Special Meeting of the Stockholders, Notice is hereby given that in pursuance of a resolution of the Board of Directors of the C. S. W. and P. Co., a corporation, organized and existing under the laws of the state of California, adopted at a special meeting of said board, duly held on the twenty-third day of January, A. D. 1905, at the office of said cor- poration, in the city and county of San Francisco, State of Cali- fornia, a meeting of the stockholders of said corporation is hereby called for, and will be held at the office of said corporation, at room 16 of the Halleck block. No. 520 Sansome street, city and county of San Francisco, State of California (said place of meet- ing being at the principal place of business of said corporation, and at the room and building where the Board of Directors thereof usually meet), on Monday, the twenty-seventh day of March, iQOj, at three o'clock P. M. on that day, for the purpose of considering and acting upon the proposition of creating a bonded indebtedness of the said corporation to the amount of six hundred thousand dollars ($600,000) gold coin of the United States ; and for the purpose of transacting such other and fur- ther business as may properly come before said meeting. NOTE. — California, C. C, sec. 359. Corporations. 165 No. 222. — Notice of Directors' Meeting. To A. B. Please take notice that there will be a meeting [regular or special] of the Board of Directors of the C. D. E. Company on Monday, June 3, igo6, at its office at No. igy Hayzvard Building, San Francisco, California, on July y, Jpoj, at p:}o A. M. No. 223. — Assessment Notice. U. C. M. Company. Location of principal place of business, San Francisco, Cali- fornia. Location of works, Virginia Mining District, Storey County, State of Nevada. Notice is hereby given, that at a meeting of the board of direct- ors, held on the nineteenth day of January 1905, an assessment (No. i) of fifteen cents per share was levied upon the capital stock of the corporation, payable immediately, in United States gold coin, to the secretary, at the office of the company, room 75, Nevada block. No. sop Montgomery street, San Francisco, Cali- fornia. Any stock upon which this assessment shall remain unpaid on Friday, the twenty-fourth day of February, 1905, will be de- linquent, and advertised for sale at public auction ; and unless payment is made before, will be sold on Thursday, the sixteenth day of March, ipoj. to pay the delinquent assessment, together with costs of advertising and expenses of sale. By order of the board of directors. A. P. S., Secretary. Office — Room 75. Nevada block, No. 309 Montgomery street, San Francisco, California. NOTE.— CnlifoT-nia. C. C, sees. 331 -.349. Notice must bear the "sig- nature" of the secretary, with the location of the company's office. No. 224. — Order Rescinding Assessment. Resolved, that the assessment No. i [of fifteen cents] levied January 19, 190^, be, and the same is hereby, rescinded No. 225. — Delinquent Sale Notice. H. S. Company. Location of principal place of business, San Francisco. Cali- fornia. Notice. — There is delinquent upon the following described stock, on account of assessment (No. i), levied on the fourteenth l66 New Book of Forms. day of December, IQ04, the several amounts set opposite tile names of the respective shareholders, as follows: No. No. Name. Cert. Shs. Amt. R. G. H p 10 $100 00 J. M. D 4 5 50 00 F. L. 5 5 50 00 And in accordance with law, and an order of the Board of Directors, made on the fourteenth day of December, 1904, so many shares of each parcel of such stock as may be necessary will be sold at public auction, at the office of the company, Nos. 61^-619 Sansome street, San Francisco, California, on Saturday, the fourth day of February, ipo6, at the time of eleven o'clock A. M. of said day, to pay said delinquent assessment thereon, together with costs of advertising and expenses of the sale. Office. — Nos. 617, 61Q Sansome street, San Francisco, Cali- fornia. NOTE. — This notice must have the "name" of the secretary with location of office: C. C, sees. 331-349. No. 226. — Extending Time of Delinquent Sale. Resolved, that the time fixed in the [describe the assessment, etc., and notice of sale] be, and the same is extended to the first day of March, 1905, at the hour of eleven o'clock of said day. NOTE. — California, C C, sec. 345. No. 227. — Waiver of Further Proceeding and Sale Under As- sessments. Resolved, that all further proceedings for the collection of the delinquent or the entire assessment [describe it] [or the part de- linquent] are by this resolution waived ; and this corporation here- by elects to proceed by action to recover the amount of said as- sessment delinquent and the costs and expenses already incurred. NOTE. — California, C. C, sec. 349. No. 228. — Bond of Indemnity — Lost Stock. Whereas, certificate No. 11,502 of the C. V. M. Co., dated May J, 1905, for twenty shares, in the name of /. B., has been lost. Now, we, the undersigned, are bound unto the C. V. M. Co. in the sum of one thousand dollars, in consideration of the issuance of a new certificate of stock for twenty (20) shares of the capital Corporations. 167 stock of said company, in place of said certificate lost or mislaid. And we agree to hold the said C. V. M. Co. harmless and free from all loss, damage, counsel fees and costs incurred, or to be incurred, by reason of said loss, and in case said certificate of stock should be hereafter presented to said company for transfer. No. 22g. — Power of Attorney — Transfer of. Know all Men by these Presents: That I, A. B., for value received, have bargained, sold, and assigned, and by these pres- ents do bargain, sell, and assign unto L. M. the following de- scribed stock, to wit: [describe the kind of stock'\ unto me be- longing, and held by certificate No. 888, in my name, and here- unto annexed, and do hereby constitute and appoint A''. M. the Secretary of said company, my true and lawful attorney, irrev- ocably, for me and in my name and stead, to assign and transfer the said stock unto the said L. M., and, for that purpose, to make and execute the necessary acts of assignment and transfer, and an attorney, or attorneys, under him for that purpose, to make, and substitute, and to do all other lawful acts requisite for effecting the premises, hereby ratifying and confirming the same. In witness whereof, etc. No, 230. — Proxy to Vote. Know all Men by these Presents: That I, A. B., of San Francisco, do hereby constitute and appoint G. C. to be my law- ful attorney, substitute and proxy, for me and in my name, to vote on all the stock held by me in the T. M. Co., and at any election for directors, as fully as I might or could do, were I personally present at such election. No. 231. — Protest of a Director of a Corporation Against Dividend to be Spread on the Minutes. Whereas, I opposed the motion made by Director A. B. C. at this meeting to declare a dividend of $100 a share upon the capital stock of this corporation ; and whereas, said motion was carried and said dividend declared without my vote, now, be it known that I dissent from the declaration of said dividend and demand that ray dissent be entered at large on the minutes of tliis meetins:. 'to* NOTE. — California: If dividends are made except from the surplus profits of a corporation, or if debts are created beyond the capital stock or if any of the capital stock is divided or paid to stockholders, or if the capital stock is increased or reduced except as by law provided, all the directors at a meeting when any of the above things are done, who do not dissent and cause their dissent to be entered on the minutes of the meeting are liable, jointly and severally, for the amount diverted, and the statute of limitations never runs in their favor: C. C, sec, 309, i6S New Book of Forms. No. 232. — Corporation — By-laws. BY-LAWS OF THE E. T. COMPANY. ARTICLE I. Its officers are President, Vice-President, Treasurer, and Sec- retary, who shall, with the exception of the Secretary and Treas- urer, be chosen at a meeting of the Board of Directors from ajnong themselves. ARTICLE II. Section i. The Board of Directors shall be elected at ^he an- nual meeting of stockholders, to serve for one year from the first Monday of May, ipo^, and until their successors are elected and qualified. Sec. 2. No stockholder shall be eligible for election as a member of the Board of Directors unless he is a bona fide owner of at least two shares of the capital stock of the company at the time of his election. ARTICLE III. Section i. President. The President shall preside at all meetings of the directors or stockholders. He shall sign, as President, all certificates of stock, and all contracts, and other instruments in writing which have been first approved by the Board of Directors. He shall draw all checks and warrants upon the treasury. He shall call the directors together when- ever he deems it necessary; and he shall have, subject to the ad- vice and control of the directors, the general superintendence of the affairs of the company. In the absence of the President, the Vice-President shall perform his duties. Sec. 2. Treasurer. It shall be the duty of the Treasurer to keep safely all moneys and bullion belonging to the company, and disburse the same under the direction of the Board of Direc- tors, on warrants signed by the President and Secretary. At each annual meeting of the stockholders, he shall submit a complete statement of his accounts for the past year, with the proper vouch- ers, for their information. He shall discharge such other duties pertaining to his office as shall be prescribed by the Board of Directors. Sec. 3. Secretary. It shall be the duty of the Secretary to keep a record of the meetings of the Board of Directors and of the stockholders. He shall keep the book of blank certificates of stock, fill up and countersign all the certificates issued, and make the corresponding entries on the margin of each book, on such issuance. He shall keep a proper transfer book, and a stock ledger in debit and credit form, showing the number of shares Corporations. 169 issued to and transferred by any stocklioldcr. and llic dates of such issuance and transfer. He shall countersign all checks, keep proper account books, and discharge such other duties as p-crtain to his office, and are prescribed by the Board of Directors. ARTICLE IV. The Board of Directors shall have power: i. To call meetings of stockholders when they deem necessary, giving not less than two weeks' notice thereof, in manner as hereinafter provided ; and they shall call meetings of the stockholders at any time, upon a written request for that purpose, of persons representing one-tenth of all the capital stock. 2. To make rules and regula- tions not inconsistent with the laws of the state of California or the by-laws of the company, for the guidance of the officers and management of the affairs of the company. 3. To declare divi- dends out of the surplus profits, whenever they shall deem it expedient. 4. To incur such indebtedness as they may deem necessary; proznded, however, that no indebtedness over one tlion- sand dollars shall at any time be incurred by the company, and to authorize the execution, by the President and Secretary, of any note for such indebtedness. ARTICLE V. It shall be the duty of the Board of Directors: i. To cause to be kept a complete record of all their meetings and acts, and also of the proceedings of the stockholders ; and to present a full statement at the regular annual meeting of the stockholders, showing in detail the assets and liabilities of the company, and generally the condition of its affairs. A similar statement shall be presented to any other meeting of the stockholders, when thereto required by persons representing at least oiic-iciitJi of the capital stock of the company. 2. To supervise all the acts of the officers and employees, require the Secretary and Treasurer to keep full and accurate books and accounts, and to prescribe the form and mode of keeping such books. 3. To cause to be issued to the stockholders, in proportion to their several inter- ests, certificates of stock, not to exceed in the aggregate the capital stock of the company. 4. To cause the moneys of the company to be safely kept, directing, from time to time, where they shall be kept or deposited. ARTICLE VI. A General Superintendent shall be appointed by the Board of Directors, and be removable at their pleasure, it shall be his duty: I. To take charge of all the property belonging to the company, and to control and direct all labor and business per- taining to the interests, objects, and operations of the company, 170 New Book of Forms. at the minei., but entirely subject to the direction and control of the Board of Directors, or of the President of the company. 2. To make monthly returns to the Board of Directors, of all persons hired or employed at the mines and works, add a state- ment of all expenditures, accompanying the same with the neces- sary vouchers, and a similar statement of ore extracted, and the disposition of the same, and report the general condition of the mines and works. 3. To make requisition upon the Board of Directors for necessary funds, stating the precise objects for which they are required, and, if approved by the Board, the money shall be transmitted to him in such mode as they may direct ; but he shall not have the power to sign notes or contracts for the company ; neither shall he have the power to incur any indebted- ness, unless so especially authorized by the President or Board of Directors. ARTICLE VII. The members of the Board of Directors shall receive no com- pensation for their services as such, nor shall the company be held liable for any services rendered, except it is so expressly provided ; but members of the board shall be allowed their rea- sonable traveling expenses when actually engaged in the busi- ness of the company, to be audited and allowed as in othe" cases of demand against the company. The Secretary and Superin- tendent shall receive such compensation for their services as the Board of Directors shall determine. ARTICLE VIII. No contract by any officer of the company shall be valid ■'vith- out the previous authorization or subsequent ratification of the Board of Directors. ARTICLE IX. Section i. The regular annual meeting of the stockholders shall be held on the first Monday of May of each year, at the office of the company, in the city and county of San Francisco, California. A representation of a majority of the capital stock shall be necessary for the transaction of the business of all meet- ings of stockholders. At such meetings a representation by proxy, duly appointed, shall be allowed, such proxy to be in writing, and filed with the Secretary of the company. Sec. 2. A regular r..onthly meeting of the Board of Direct- ors shall be held on the first Tuesday of each month, and special meetings of the board may be called by the President, whenever he may deem it expedient. A majority of the Board of Directors shall constitute a quorum for the transaction of business. Sec. 3. All meetings of the stockholders shall be called by a notice published at least three times a week for two weeks in a Corporations. 171 daily newspaper in the said city and connfy, and also in some daily paper published at the city of Salt Lake, Territory of Utah. ARTICLE X. Certificates of stock shall be of such form and device as the Board of Directors may direct, and such certificates shall be sijii^ned by the President and Secretary, and express on its face their number, date of issuance, number of shares for which and the persons to w^hom issued. Several certificates may be issued •to the same person or persons, provided that in the aggregate they do not exceed the number of shares belonging to such per- son or persons. The certificate-book shall contain a margin on which shall be entered the number, date, number of shares, and the name or names of the person or persons expressed in the corresponding certificates. ARTICLH; XL Shares of the company may be transferred at any time by the holders thereof, or by attorney legally constituted, or by legal representative. But no transfer shall be valid except between the parties thereto, until entered in the proper form on the books of the company. The surrendered certificates shall be canceled before a new certificate shall be issued in lieu thereof. The re- ceiver of the new certificate shall be required to signify his as- sent to the by-laws of the company; and no transfer of any share of stock shall be valid, upon which any assessments are due and unpaid, or to the holder of which is indebted to the com- pany on any account whatever, without the consent of the Board of Directors. ARTICLE XII. The books and papers, in the office of the Secretary and Treasurer, shall at all times during business hours be open to the inspection of the Board of Directors, and of any stockliolder. ARTICLE XIIL These by-laws may be altered or amended at any annual meet- ing of the company, or at any special meeting called for that purpose, by a vote of two-thirds of the subscribed stock. Also by a vote of a majority of the Board of Directors at any meet- ing of the board. ARTICLE XIV. These by-laws shall always remain in possession of the Secre- tary of the company and may be inspected at any time during office hours by any stockholder. 172 New Book of Forms. CERTIFICATE. We, the undersigned, a majority of the directors of the E. T. Co., hereby certify that the foregoing By-laws, consisting of fifteen articles, have been duly adopted as the by-laws of said corporation. Witness our hands, this tenth day of May, 1905. NOTE. — Under the laws of California, by-laws must be adopted within one month after filing articles of incorporation, and must be copied into a book, to be known as the "Book of By-laws"; and no by-law taJses effect until so copied. C. C, sees. 301, 304. It is suggested that a day certain be set in the by-laws for directors' meetings. Then notice will be unnecessary. One meeting a month ought to be sufficient. If other meetings are necessary, they may be specially called. This form is altogether too wordy for general use. It was intention- ally thus constructed; so that there would be sufficient matter out of which all necessary rules might be condensed and formulated. It is not possible to draw a form applicable to all seemingly similar corporations. No. 233. — By-laws Adopted by Assent of Stockholders. We, the undersigned, being the holders of two-thirds of the subscribed capital stock of the A. B. [the corporation to the By- lazvs of which the certificate is attached or at the end of which it is zvritten], hereby assent to the foregoing By-laws. Witness our hands this ^d day of June, ipo6. Names. No. of Shares. NOTE.— California, C. C, sees. 301-304. No. 234. — Certificate to By-laws, We, the undersigned, hereby certify that the foregoing writ- ing, consisting of twelve sections, and dated June j, igo6, are the By-laws of the A. B. Company, a corporation organized under the laws of the state of California, and that the said By-laws were adopted by the written assent [or otherwise, as the case may be] of the holders of its capital stock. [Certified by a majority of the Board of Directors and Sec- retary.] NOTE.— California, C. C, sees. 301-304. Deeds — Grams — Cu.nvevaxces. 173 DEEDS— GRANTS— CONVEYANCES. Modes of Transferring Title. — A transfer may made with- out writin<^, in every case in which a writing is not expressly required by statute. Grant, What is. — A transfer in writing is called a grant, or conveyance, or bill of sale. The term "grant," in this and the next two articles, inckides all these instruments, unless it is specially applied to real property. Delivery. — A grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor. Delivery Presumed. — A grant duly executed is presumed to have been delivered at its date. Delivery to Grantee is Absolute. — A grant cannot be de- ITvered to the grantee conditionally. Delivery to him, or to his agent as such, is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the de- livery was made. Delivery in Escrow. — A grant may be deposited by the grantor with a third person, to be delivered on performance of a condition, and, on delivery by the depositary, it will take effect. While in the possession of the third person, and subject to con- dition, it is called an escrow. Redelivery, Effect of. — Redelivering a grant of real prop- erty to the grantor, or canceling it, does not operate to retrans- fer the title. Constructive Delivery. — Though a grant be not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered in the following cases: i. Where the instrument is, by the agreement of the parties at the time of execution, understood to be delivered, and under such circum- stances that the grantee is entitled to immediate delivery ; or 2. Where it is delivered to a stranger for the benefit of the grantee, and his assent is shown, or may be presumed. NOTE. — California: The above eight paraprraphs are from the Civil Code; the first is section 1052 and the last 10.59. Alaska, rodea, pt. .5, c. 11, sees. 369-3S0; Arizona, C C, pars. 721-760; Colorado, Mill's Stats., 174 New Book of Forms. Bccs. 456-601; Idaho, C. C, sees. 2419-2460; Montana, C. C, sees. 1511- 1827; Nevada, Comp. Laws, sees. 2407-2731; New Mexico, Comp. Laws, sees. 2931-3967; North Dakota, C. C, sees. 3434-3598; Oregon, Codes and Statutes, sees. 5342-5527; South Dakota. C. C. sees. 915-947; Utah, Eev. Stats., sees. 1968-2498; Washington, Ballinger's Codes, sees. 4520-4530; "Wyoming, Eev. Stats., sees. 2728-2753. Transfer of Real Estate. — In California real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent authorized by writing. No. 235.— "Grant," Form of. A grant of an estate in real property may be made in sub- stance as follows: "I, A. B., grant to C. D. all that real property situated in (in- sert name of county) county, state of California, bounded [or described] as follows: [Here insert description, or if the land sought to be conveyed has a descriptive name, it may be described by the name, as, for instance, 'The Norris Ranch']. ""Witness my hand this [insert day] day of [insert month], 18—. *'A. Br NOTE.— California, C. C, sec. 1092. "Grant," Meaning of. — From the use of the word "grant" in any conveyance by which an estate of inheritance or fee sim- ple is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs, and assigns, are implied, unless restrained by express terms contained in such conveyance: i. That previous to the time of the execution of such conveyance, the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee; 2. That such estate is at the time of the execution of such conveyance free from encum- brances done, made, or suffered by the grantor, or any person claiming under him. Such covenants may be sued upon in the same manner as if they had been expressly inserted in the con- veyance. Encumbrance, What is. — The term "encumbrances" in- cludes taxes, assessments and all liens upon real property. NOTE.— California, C. C, sees. 1091, 1092, 1113, 1114. Idaho, C. C, sections 2416, 2417, are the same as California, sections 1113, 1114, and section 2400 is the same as in California, section 1091. Montana, C. C, sees. 1500, 1501, 1519, 1520, the same as in California. North Dakota, C. C, sees. 3531, 3535-3539, 3540, the same as in California. South Da- kota, C. C, sees. 938-940, 942, 943, the same as in California. Deeds — Grants — Conveyances. 175 "Deed," Meaning of. — In a large sense "deed" includes "mort- gage." If the wording of an instrument shows that il was used in a Umited sense the instrument will not be held to be a mortgage: Hillmaa V. Howard, 44 Cal. 101. Execution of. — Words used as follows: "I give ample power to D. J. N. to use or dispose of my lot, and in testimony I give the present power at Y. B., sixth day of October, 1846," is not a conveyance: Stafford v. Lick, 10 Cal. 12. Description of Property Conveyed in Deeds. — The quantity stated is not controlling: Tappendorff v. Downing, 76 Cal. 169, 18 Pac. 247. It yields to description by metes and bounds or by a name or number: Startey v. Green, 12 Cal. 148; Hall v. Shotwell, 66 Cal. 379, 5 Pac. 683. A deed of an undivided two-thirds of two leagues of land, part of a grant, is good as far as it goes: Spect v. Gregg, 51 Cal. 198. See, also, MeCullough V. Olds, 108 Cal. 529, 41 Pac. 420. A map must give way to number in case of conflict: Masterson v. Munro, 105 Cal. 431, 45 Am. St. Bep. 57, 38 Pac. 1106. Description Otber than by Quantity. — "Lot No. 1 in subdivision of tract of land lying on new county road and known as Foley's tract, the map of which is duly recorded in the recorder's office," is not a sufficient description: Caldwell v. Center, 30 Cal. 539, 89 Am. Dec. 131. A deed by C. to B., reciting C. as owner, of the Canada de Eaeniundo, and de- scribing the land conveyed as "the land between the creek of the Presa, north of the creek of the Alembrique, without embracing my said ranch," is not void for want of description, nor because of the words, "without embracing my said ranch": Havens v. Dale, 18 Cal. 359, cited 93 Cal. 670, 29 Pac. 256. A description which calls for a lot of land one hundred varas square, bounded on three sides by well-known streets upon the plat of a city laid out, surveyed and platted, and on the other by unsurveyed lands," is good: Garwood v. Hastings, 38 Cal. 216. "All my interest in a parcel of land in the town of San Francisco, being block No. 9, the same on which I now reside. The part thus donated commences at the northeast corner of said block, running twenty- five varas west from said corner; thence back one hundred varas," was held to be good as to a strip off the easterly side of the block twenty- five varas wide and a hundred varas deep: De Levillain v. Evans, 39 Cal. 120. A deed described the land as "bounded on the north the land of Joseph C. Palmer." Held, to be a sufficient identification of the north- ern boundary: McKeon v. Millard, 47 Cal. 581. A deed is not uncertain if from the description the boundaries can easily be found: Meyers v. Farquharson, 46 Cal. 190. A deed for "one-half of my lot" in the place described is good if grantor owned but one lot in the place: Lick v. O'Donnell, 3 Cal. 59, 58 Am. Dec. 383 If a description is so uncertain that it will fit several parcels of land, it is void: People v. Khnnpke, 41 Cal. 263. Deed de- scribing "three fractions of lot 7, L and K, Fourth and Fifth streets, Sacramento City," is void: Tryon v. Huntoon, 67 Cal. 325, 7 Pac. 741. Description by Name. — A well-known name of land is a sufficient description: Haley v. Amestoy, 44 Cal. 132. See, also, Vejar v. Mound City Land Assn., 97 Cal. 659, 32 Pac. 713. Name or number is good if certainty can be obtained by evidence of what was intended: Stanley v. Green, 12 Cal. 148; MeCullough v. Olds, 108 Cal. 529, 41 Pac. 420; cited, 14 Nev. 63; 16 Nev. 237; 3 New Mcx. 24. The same rule applies to grants as to what is conveyed by a deed, and to what is excepted from its operation: Truett v. Adams, 66 Cal. 218, 5 Pac. 96. The same rule was applied in 97 Cal. 659, 32 Pac. 713. 1/6 New Book of Forms. Description by Reference to Deed, Survey or Map. — A deed referring to another deed for a description becomes part of the other the same as if copied in the referring deed: Vance v. Fore, 24 Cal. 435; cited, 5 Utah, 635, 19 Pac. 198. See 30 Cal. 539, 89 Am. Dec. 131, to same point. If such deed referred to is falsely stated to be recorded in the county where the property lies, such falsehood does not vitiate the reference: Saunders v. Schmaelzle, 49 Cal. 59. A deed conveying a United States subdivision was described only by the name of the township and the subdivision of the township. It was held to be a good description be- cause the survey and monuments made and erected by the United States were considered as referred to by reference in the deed to the United States subdivision: Powers v. Jackson, 5 Cal. 429. The same principles apply to a tract of land marked on a map of it if the boundaries and natural objects on the surface of the land are delineated: Chapman v. Polack, 70 CaL 487, 11 Pac. 764. Similar cases are Fratt v. Tombs, 48 Cal. 28; Perry v. Eiehards, 52 Cal. 672; Pettigrew v. Dobbclaar, 63 Cal. 396. No other deed or map or instrument will be admitted in evidence except the one referred to: Caldwell v. Center, 30 Cal. 539, 89 Am. Dee. 131. Parol evidence is admissible to identify the map referred to: Redd V. Murry, 95 Cal. 48, 24 Pac. 841, 30 Pac. 132. The description of an instrument or thing referred to m.ust be such that the land conveyed can be identified. It is a maxim of law that that is certain which can be made certain. It is also a rule of law that evidence outside of a deed is admissible to explain its calls so as to give it effect: Thompson v. Southern California Motor Road Co., 82 Cal. 497, 23 Pac. 130. As to descriptions by reference to numbers in maps, see McCullough v. Olds, 108 Cal. 529, 41 Pac. 420, and by blocks and maps, Mastersou v. Munro, 105 Cal. 431, 45 Am. St. Rep. 57, 38 Pac. 1106; and for legal subdivisions of sections, Eshleman v. Malter, 101 Cal. 233, 35 Pac. 860; in each case the description was considered good; but in the description by monu- ments, distances, conflicting lines, by the omission of a line that would mend matters if it had been inserted, it was intimated that if the num- ber of acres in the tract had been stated, an essential part of the de- scription would not have been omitted: Hostctter v. Los Angeles Termi- nal R.'Co., 108 Cal. 38, 41 Pac. 330. Conflicting Descriptions. — Of two goods a grantee takes the best — that is to say: If a deed contains two descriptions and both are of equal authority, the one most favorable to the grantee will be adopted: Vance V. Fore, 24 CaL 435. If the descriptions are repugnant, effect is given to the one which is in accord with the intention of the parties: Wade V. Deery, 50 Cal. 376. A false description is surplusage a»s against a good one: Reed v. Spencer, 27 Cal. 57; cited, 13 Nev. 524. If one de- scription describes land the grantor owned, and the other does not, effect is given to the former: Piper v. True, 36 Cal. 606. If a correct descrip- tion by name and an erroneous description by metes and bounds are in the same grant, the name governs: Haley v. Armstrong, 44 Cal. 132; cited, 13 Nev. 524; Murray v. Tulare Irr. Co., 120 Cal. 311, 49 Pac. 563, 52 Pac. 586. If there is a conflict between a map and a survey, the sur- vey controls: Cleaveland v. Choate, 77 Cal. 73, 18 Pac. 875; Whiting v. Ga'rdner, 80 CaL 78, 22 Pac. 71; Sanchez v. Grace M. B. Church, 114 Cal. 295, 46 Pac. 2. A map prevails over degrees of latitude: Mayo v. Ma- zeaux, 38 Cal. 442. In a conflict between a description by courses and boundaries and a description by survey, the survey governs: Hudson v. Griven, 50 Cal. 450. Quitclaim Deed. — "All my right and interest" (Frey v. Clifford, 44 CaL 335; cited, 3 N. Mex. 238); "demise, release and quitclaim"; DeeDS — Gr^^nts — Conveyances. 177 "hath, and hereby does release, and forever quitclaim" ("Wholry v. Cavanati-jh, 88 Cal. 132, 25 Pac. 1112); pass whatever title the {grantor has at the date of the execution of the deed: Carpenter v. Williamson, 25 Cal. 154; Rego v. Van Pelt, 65 Cal. 254, 3 Pac. 867; cited 79 Cal. 4.16, 21 Pac. 47; Morrison v. Wilson, 30 Cal. 344. The words, "waive ami renounce," when inserted in a document which does not purport to be a conveyance, do not convey title: Davis v. McGrew, 82 Cal. 135, 23 Pac. 41. A quitclaim deed from a man to his wife passes his interest in the community property. It conveys the fee simple if the grantor had it: Spaulding v. Bradley, 79 Cal. 449, 22 Pac. 47. "I deed all my right, title and interest in Sacramento City, Upper California, consisting of town lots and buildings thereupon," passes all the grantor's interest in his lots in Sacramento City: Frey v. Clifford, 44 Cal. 335; cited, 3 N. Mex. 247; 16 Nev. 238. If an applicant has merely prepared his applica- tions for state lands, his quitclaim deed passes no interest in the land described in his proposed application, even if the habendum clause says that it shall: Anderson v. Yoakum, 94 Cal. 227, 28 Am. St. Eep. 121, 29 Pac. 500; but if, when a holder of certificate of purchase on which a payment has been made makes a quitclaim deed of his interest, and sub- sequentlv obtains a patent, his title passes to his grantee: Wholey v. Cavanaugh. 88 Cal. 132, 25 Pac. 1112; Crane v. Salmon, 41 Cal. 63. In a case C. had no title; made a quitclaim to D., and then acquired title and granted it to P. Held, that P. took under his deed: Cadez v. Majors, 33 Cal. 288. Even if the "quitclaim" contains a covenant of warranty, the title does not pass: Quivy v. Baker, 37 Cal. 465. And it would not pass if it had been a grant deed: See the cases cited under head "Grant Deeds." If a deed uses words of grant, bargain and sale, it will be construed to "mean quitclaim" if a clause in it says that as to title it is "only a quitclaim": Morrison v. Wilson, 30 Cal. 344; cited, 1 Mont. 708. A quitclaim deed does not carry the title subsequently acquired by the grantor under a patent: McDonald v. Edmonds, 44 Cal. 328. A grantee under a quitclaim may deny that he received any estate by that deed: San Francisco v. Lawton,' IS Cal. 465, 79 Am. Dec. 187. A recorded quitclaim deed received in good faith and for a valuable con- tideration takes precedence of an unrecorded grant, bargain and sale deed: Graff v. Middleton, 43 Cal. 341; cited, 44 Cal. 343; Frev v. Clifford, 44 Cal. 335; cited, 72 Cal. 564, 14 Pac. 27; 19 Or. 347, 24 Pac. 515. Mistakes and Ambignitles — Evidence. — In cases of latent ambiguity, testimonv as to the facts and circumstances under which the deed was executed' will be heard: Piper v. True, 36 Cal. 606; cited, 13 Nev. 524; Brandon v. Leddy, 67 Cal. 43, 47 Pac. 33. A description of the follow- ing class is void on account of patent anibiguitv: "The following de- scribed property, situate, lying and being in the city of Sacramento, state of California, consisting of two thousand two hundred town lots, be the same more or less, said lots being boundf'd according to the origi- nal plat or plan of said city": Mesick v. Sunderland, 6 Cal. 297; cited, 2 IM'ont. 424; 8 Mont. 304. 20 Pac. 807. If a description is false in some particulars, and if a sufTiciont true description remains, the deed is good: Irving V. Cunninsrham, 66 Cal. 15; Eeamer v. Nesmith, 34 Cal. 624; cited, 10 Mont. 292, 25 Pac. 1056. If the land is described by the wrong divisions of a survey of a section, the deed passes the title if the land can be identified by monuments actually fixed upon the ground: Helm V. Wilson. 76 Cal. 476. IS Pac. 604. If a description is defective, fhe defect mav be cured bv evidence: Fudickar v. East Riverside Irr. Dist., 109 Cal. 29, 41 Pac. 1024. If a description in a deed is known by the parties to be incorrect, but was put in for the convenience of the grantee for lack of a true de- New Forms — 12 1/8 New Book of Forms. scription, and it was verbally understood that possession was only t« be given as to the lands which the grantor owned in fee within the calls of the deed, the grantee may have the deed reformed to describe the lands actually sold, and the fact that the deed and agreement were not made under mistake as to their terms and meaning: Eva v. McMahon, 77 Cal. 467, 19 Pac. 872. Parol evidence is admissible to show the loca- tion of a tract described by name: Colton Land etc. Co. v. Swartz, 99 Cal. 278, 33 Pac. 878. A conflict between a survey and map may be shown: O'Farrell v. Hasney, 51 Cal. 125. An official map may be shown to be inaccurate: Cleaveland v. Choate, 77 Cal. 73, 18 Pac. 875. The conduct of the parties after making a deed, .to determine ambiguity, may be shown: Vejar v. Mound City Land etc. Assn., 97 Cal. 659, 32 Pac. 713; Piper v. True, 36 Cal. 606. "When the terms of a conveyance are ambiguous or insufficient, the subsequent acts of the parties may be re- sorted to to ascertain their intention: Truett v. Adams, 66 Cal. 218, 5 Pac. 96; cited, 11 Mont. 324, 28 Pac. 315, 24 Or. 97, 32 Pac. 1027. Capability to Grant. — A deed is invalid if either party is incapable of holding: Sunol v. Hepburn, 1 Cal. 254; Phelan v. San Francisco, 6 Cal. 531; Hunter v. Walson, 12 Cal. 363; Barr v. Schroder, 32 Cal. 609. Estate to Commence in Future. — Such estates are void: Hawes v. Stebbins, 49 Cal. 369. In 1869 plaintiff sold to defendant a tract of land. The deed was upon the express condition that plaintiff, grantor, should retain the use and control as long as he lived. The grantor brought this action to quiet title. Upon appeal the court assumed that the deed was inoperative (not void) as a common-law conveyance. It held that a freehold to commence in future could be created by bargain and sale under the statute of uses, and that if that statute was part of our law prior to the codes, the deed was valid, and that if that statute was not in force when the deed was executed, the deed would be enforced in a court of equity as it would have been done before the statute. It held that in either case a court of equity had authority to determine the rights of the parties by ordering the plaintiff to convey to his grantee the fee of the pi'operty, and when that was done the defendant was ordered to convey to the plaintiff a life estate in the same property: Chandler v. Chandler, 55 Cal. 267; citing Hawes v. Stebbins, above re- ferred to, which was a very kind thing to do instead of overruling it. Signature to Deed. — There is no form for signing a deed. If a writ- ing shows that the maker has adopted it as his own, and intended to be bound by it, it is a deed if the subject of the instrument is land: Ingalsby v. Juan, 12 Cal. 564, 565; Blaisdell v. Leach, 101 Cal. 405, 40 Am. St. Eep. 65, 35 Pac. 1019. In California a seal to a deed or conveyance is unnecessary. There the words, "grant," "deed," "con- veyance" or "quitclaim" in an instrument intended to pass title to land have the same general meaning. If the intention is to pass a title which the parties know the grantor owns, and is unencumbered, either word will pass the title. If the grantor has no title and uses the word "grant" and afterward acquires title, the title so acquired passes to his grantee without further writings. If a grantor uses the words "quit- claim" and afterward acquires title, it does not pass to the purchaser. Lawyers say, "Subsequent title acquired by a grantee," or the person who executes a deed or conveyance, "feeds the grant," but the word "quitclaim" only passes the title owned by him at the date when the instrument was executed. There are other differences, but the foregoing are sufficient for the purposes of this note. Since the decision in the Ingalsby and other similar cases, a grant, deed or conveyance of land is good in California without a seal; but so close does the coat of old Cali- fornia lawyers and conveyancers stick to their backs, that a conveyance Deicds — Grants — Conveyances. 179 or mortp^age of land without a seal is extremely unusual. If a maker of a form book omits seals from his California forms that were inflispens- able in the time of Noah, his work is liable to be questioned, and there- fore seals appear on many forms for use in those places where they are unnecessary. Under civil law any instrument containinfr the names of the parties, a description of the land sold, the date of transfer and tho price paid, passed the title: Stanley v. Green, 12 Cal. 148. Grantee's Name must be Inserted. — A deed with grantee's name omitted is not a deed. If his name is inserted in his absence it does not become a deed unless the person who inserted it had written authority to do it: Upton v. Archer, 41 Cal. 85, 10 Am. Rep. 266. In Wunderlin V. Cadogan. .50 Cal. 613, it was held that a deed without a grantee's name is void. See, also, Arguello v. Bours, 67 Cal. 447, 8 Pae. 49. Two or More Grantors. — If there are two grantors, and one signs as the other's attorney in fact, he must sign once for himself and once for the other grantor: Meagher v. Thompson, 49 Cal. 189. Signature by Another. — If a grantor's signature is made by another at his request and in his presence such deed is valid: Jansen v. MeCahill, 22 Cal. 563, 83 Am. Dec. 84. All Grantors not Signing. — If any of the grantors named in the in- strument do not sign, the deed is binding on the interests of those who sign: Colton v. Scavey, 22 Cal. 496. Conveyance by Partner. — Such conveyance is good even if the name of each partner is inserted in the caption as the first parties: Coyton v. "Walker, 10 Cal. 450. Grantor Unable to Write. — If a man is unable to sign his name, is of sound mind, and if a conveyance is read to him before it was signed, and if he then requests a bystander to guide his hand so he could make his signature, the deed is good: Harris v. Harris, 59 Cal. 620. See Gordon v. City of San Diego, 108 Cal. 264, 41 Pac. 301. Identity of the Parties. — If the owner of land conveys it in his own or in any other name as grantor, as between grantor and grantee, the deed will pass the title: Fallon v. Kehoe, 38 Cal. 44. In Wilson v. White, 84 Cal. 239, 24 Pac. 114, the above case was cited and approved holding that a conveyance to or by a fictitious name carries the title. Signing Wrong Name. — If a grantor's true name is in the body of deed and he acknowledges it by that name but signs any other name to it, his title passes: Middleton v. Findla, 25 Cal. 76. Identity of Grantor or Grantee. — If John Smith grants to John Smith a trust of land, in an action to quiet title to the land by John Smith plaintiff, against John Smith, defendant, the identity of the grantor with the defendant will be presumed from the identity of names: Ward V. Dougherty, 75 Cal. 241, 7 Am. St. Rep. 151, 17 Pac. 193. At law a presumption is only temporary, and if any John Smith was in possession under a deed, his op]>otient might prove that he was not the John Smith grantee, or if he claimed possession and could not obtain it, after de- mand he would be called upon to prove that he was .Toim Smith, grantee. In such case conveyances ougDt to contain words of identification such as "John Smith, of A. B., merchant," etc. But even that precaution does not appear to prevent comparison, because it has been said that if the name of the grantor is identical with that of the grantee in a former deed, even if both deeds recite the residence of the person to be at dif- ferent places: Carlton v. Townsend, 28 Cal 219. In all such eases identity of person is a question of fact. It has been held that where an objection was made that no proof had been offered that William Johnson of a deed was the William Johnson of the United i8o New Book oi^ Forms. states patent, it would be presumed that the persons were the same nnless some circumstances were shown to create doubts upon the point: Mott V. Smith, 16 Cal. 533. Consideration. — A consideration need not be expressed in a deed: Goad V. Moulton, 67 Cal. 536, 8 Pac. 63. Nevertheless when a considera- tion is expressed, courts refer to it and seem to consider that the consid- eration expressed is prima facie true. In California a written instrument is presumed to be founded upon sufficient consideration: See Salmon v. Wilson, 41 Cal. 595; Carty v. Connolly, 91 Cal. 15, 27 Pac. 599; Field v. Shorb, 99 Cal. 661, 34 Pac. 504. A good consideration as used in section 1605 of the Civil Code is a valuable consideration: Aden v. City of Val- lejo, 139 Cal. 165, 72 Pac. 905. Real Consideration. — The parties may show what the real considera- tion was: Irvine v. McKcan, 23 Cal. 134. Either party may show what the real consideration was as between themselves. And this is so in states where a seal is necessary, provided the consideration is of the same species as that mentioned in the deed, and the amount of the considera- tion may be contradicted: Ehine v. Ellen, 36 Cal. 362. If no considera- tion is expressed, it may be proved by parol: Merle v. Mathews, 26 Cal. 455. But if consideration is expressed, the grantor is estopped from claiming that there was no consideration; but if fraud is charged, the consideration expressed is open to explanation and variation by \>aTol evidence: Coles v. Soulsby, 21 Cal. 47. If the grantor bring action to recover a consideration, it may also be shown that the expressed con- sideration was not to be paid in any event: Rhine v. Ellen, 36 Cal. 362. Gift Deeds. — A mother's deed of land to her child upon the verbal consideration of a promise of support, care and attention during life is void because, being \ erbal, it cannot be enforced against her child, and may be canceled at the suit of the mother: Grimmer v. Carlton, 93 Cal. 189. Eecital of Payment. — Acknowledgment of payment in a deed may be contradicted: Rhine v. Ellen, 36 Cal. 362. It is not evidence of pay- ment as against a grantee under a prior deed: Colton v. Seavy, 22 Cal. 496 Always the real character of the consideration may be shown: Byers v. Locke, 93 Cal. 496, 27 Am. St. Rep. 212, 29 Pac. 119. It is pre- sumed that the consideration was paid by the grantee; and to overcome that presumption the evidence must be clear: Anthony v. Chapman, 65 Cal. 73 2 Pac. 889. The same rule applies to deeds of gift even wh!>n both love and affection and money was the expressed consideration: Peck V. Vandenburo-, 30 Cal. 11. The recital of a consideration as paid by the purchaser is not evidence of the payment against strangers to the deed: or against those claiming prior to the deed, or claiming adversely. It is ovidenee only against those claiming against the grantor by subsequent ftonveyance: Gallard v. Lackman, 26 Cal. 70. Delivery of Deed. — A deed does not take effect until it is delivered with the assent of the grantor: Gould v. Wise, 97 Cal. 532, 32 Pac. 576, 33 Pac. 323. Title will not pass by an undelivered deed: Barr v. Schroder 32 Cal. 609. To the same point, Finch v. Bunch. 30 Cal. 208. See also,' 65 Cal. 327, 4 Pac. 106, 67 Cal. .547, 56 Am. Rep. 726, 4 Pac. 473, 8 Pac. 46. If, after delivery, the grantor takes possession of the deed and destroys it the grantee's title is not affected: Kinneff v. Coalfield, 140 Cal. 34, 73 Pac. 803. A deed takes effect when the maker delivers or causes it to be de- livered to the grantee with intention to have it immediately take effect: Harris v. Harris, 59 Cal. 620. When the grantor devests himself of all power over it, the deed is delivered: Denis v. Velati, 96 Cal. 223, 31 Pae. 1. Delivery is always a question of fact: Hastings v. Vaugh, 5 Cal. 315; Deeds — Grants — Conveyances. i8i eitcd, 67 Cal. 553, 562, 56 Am. Rep. 726, 4 Pac. 473, 8 Pac. 46; Dean v. Parker, 88 Cal. 283, 26 Pac. 91. Intent to deliver depends uikjii :i11 the circumstances surrounding the execution: Hibberd v. Smith, 67 ('al. 547, 66 Am. Rep. 726, 4 Pac. 473, 8 Pac. 46. Where a deed was delivered to a grantee with intent to invest title in him, and the maker requested him not to record it until after his death, is an immaterial fact. The title immeiliately vested in the grantee: Dimmick v. Dimmick, 95 Cal. 323, 30 Pac. 547. To be valid, the grantor must part with the deed for all time: Kenney V. Parks, 125 Cal. 146, 57 Pac. 772. After such delivery the deed may come to the possession of the grantor without invalidating it: Reed v. Smith, 125 Cal. 491, 58 Pac. 139. As to sham deliveries, see "Deeds." See Stephenson v. Duel, 125 Cal. 656, 58 Pac. 258. A deed may be valid if delivered after grantor's death if sufTiciently referred to in the grantor's will and in it devised to the grantee: Estate of Young, 123 Cal. 337, 55 Pac. 1011. Delivery to one of the two grantees is delivery to both: Eshleman v. Henrietta Vineyard Co., 102 Cal. 190. 36 Pac. 579. Delivery depends upon intention of both grantor and grantee: Whitney V. American Ins. Co., 127 Cal. 464, 59 Pac. 897. Under section 1055 of the Civil Code, a deed after execution is pre- sumed to have been delivered at its date: Ward v. Dougherty, 75 Cal. 240, 7 Am. St. Rep. 151, 17 Pac. 193; McGorry v. Robinson, 135 Cal. 312, 67 Pac. 279; Lewis v. Burns, 122 Cal. 358, 55 Pac. 132. See Poulsen v. Stanley, 122 Cal. 655, 68 Am. St. Rep. 73, 55 Pac. 605. An authenticated copy of a recorded deed is presumed that the original was delivered: Davis V. Paeitie Improvement Co., 118 Cal. 45, 50 Pac. 7. But such pre- sumption is not conclusive: Treadwell v. Reynolds, 47 Cal. 171; and a party claiming under adverse title may prove the delivery: Sill v. Reese, 47 Cal 294. A deed delivered to a grantee to take effect upon a con- tingency takes effect when the contingency happens: Howard v, Throck- morton, 59 Cal. 79. Delivery to a grantee does not always pass title. If it is shown that it was delivered for another purpose, title does not pass. Intention governs: Denis v. Velati, 96 Cal. 223, 31 Pac. 1. Pos- session of a deed is presumption of delivery: Black v. Sharkey, 104 CaL 279, 37 Pac. 939. A deed delivered by grantor to a person with instructions to hold it for grantor's children, and not record it until he died, and then deliver it to them, if the deed contains no reservations in favor of the grantor, the title immediately vests in the grantees, but the grantor holds a life estate in the subject of the grant: Bury v. Young, 98 Cal. 446, 35 Am. St. Rep. 186, 33 Pac. 338. Fraud and Deceit Affecting Delivery.— A grantee absconds (makes off) with a deed. No delivery: Haskell v. Doty, 78 Cal. 424, 21 Pac. 10. H. obtains possession clandestinely. No delivery: Gould v. Wise, 97 CaL 532, 32 Pac. 576, 33 Pac. 323.' A relative of grantee who held a deed conditionally which he obtained bv false representations, had it recorded but his fraud availed him nothing: Klose v. Hildobrand, 88 Cal. 473. 26 Pac. 352. See Denis v. Velari, 96 Cal. 223, 31 Pac. 1. Also Fisli v Benson, 71 Cal. 428. 12 Pac. 454. If a man is ignoran*^ of what he conveys by his deed, but knows that he was "doing something" with his estate, but was told tliat what he was doing was a mere form, such a deed is not void; but if all the facta warrant, it may be voidable: Blaisdell v. Leach, 101 Cal. 405, 40 Am. St. Rep. 65, 35 Pac. 1019. A drunken man executed a deed. He thought it was a letter. He was kept in ignorance that he had executed the deed until less than three years before the commencemont of action to annul the deed. Those facts sustained his complaint: Loftis v. Marshall, 134 Cal. 394, 86 Am. i82 New Book of Forms. St. Rep. 286, 66 Pac. 571. See Kenny v. Parks, 137 Cal. 527, 70 Pac. 556, as to the time in which action must be commenced. Evidence of Delivery. — There is no presumption of delivery arising from signing and acknowledgment of a deed: Boyd v. Slaybach, 63 Cal. 493; cited, 75 Cal. 243, 7 Am. St. Rep. 151, 17 Pac. 193. In Bensly v. Atwell, 12 Cal. 231, it was said that signing and acknowledgment is some evidence of delivery. In another case, plaintiff's attorney produced a deed to him in court and olTered it in evidence. Held, that such offer was sufficient evidence that it was delivered to him and that he ac- cepted it: Branson v. Caruthers, 49 Cal. 374; cited, 75 Cal. 246, 17 Pac 1. See Still v. Rees, 47 Cal. 294. Recording is not evidence of de- livery unless the deed comes from the hands of the grantor or his grantee: Barr v. Sehroeder, 32 Cal. 609; cited, 75 Cal. 243, 7 Am. St. Rep. 151, 17 Pac. 193. A deed found amoung the papers of a deceased person is some evidence of its delivery to him: Kidder v. Stevens, 60 Cal. 414. In Gordon v. City of San Diego, 108 Cal. 279, 41 Pac. 301, it is said that an executed grant is presumed to have been delivered at its date: C. C., see. 1055. The rule in some other states that a deed is not presumed to have been delivered until it is acknowledged is not applicable in Cali- fornia. A man executed a deed in the house cf gi"antee and left it on grantee's table, and when grantor had gone grantee put it away. Those facts establish delivery, aside from the presumption arising from possession of the grant: McLennan v. McDonnell, 78 Cal. 273, 20 Pac. 566. Decla- rations of grantor made months after the delivery of his deed are not evidence of his intentions in delivering it: Bury v. Young, 98 Cal. 446, 35 Am. St. Rep. 186, 33 Pac. 338. If delivery is disputed, evidence of the party with whom the grantor left the deed as to grantor's conversa- tions with him as to his intentions in relation to the delivery is admis- sible: Dean v. Parker, 88 Cal. 283, 26 Pac 91, Cancellation — Eedelivery. — Destruction of a deed after delivery does not revest title, even if destroyed for the express purpose of restoring title to the grantor: Crammer v. Porter, 41 Cal. 462; Bowman v. Cud- worth, 31 Cal. 148. See Kelley v. Wilson, 33 Cal. 690; Lawton v. Gor- dan, 37 Cal. 202. Also, Kearsing v. Kilian, 18 Cal. 491; Ahrens v. Alder, 33 Cal. 608. Delivery in Escrow, — A deed is said to be in escrow when it is deliv- ered to a third person to keep and deliver to the grantee upon certain conditions to be by him performed, which is usually a sum of money to be paid the grantor. It must be complete in all its parts before it is in a form to be delivered in escrow. It mast no longer be under the grantor's control. It only lacks delivery to give it vitality: Fitch v. Bunch, 30 Cal. 208; Wittenbrock v. Cass, 110 Cal. 1, 42 Pac 300; Con- nor V, Handley, 72 Cal. 133; cited, 77 Cal. 282, 19 Pac. 499; Miller v. Sears, 91 Cal. 282, 25 Am, St. Rep. 176, 27 Pac, 589; Beem v. McCusick, 10 Cal. 538. It must be delivered to a person not a party to it: Mowry V. Heney, 86 CaL 471, 25 Pac. 17. The grantor must have intended to part with the possession for all time: Kenney v. Parks, 125 Cal. 146, 57 Pac 772, S, C, 137 Cal, 527, 70 Pac 556, A deed in escrow carries all the title the grantor had at the date of its execution, and is good against an intervening grantee who takes his deed with knowledge of the escrow. The grantor cannot revoke it after its delivery in escrow: McDonald v. Hoff, 77 Cal, 279, 19 Pac. 499; Bradbury v. Davenport, 114 Cal. 593, 55 Am. St, Rep. 92, 46 Pac. 1062; Marr v. Rhodes, 131 Cal, 267, 63 Pac, 364. At any time be- fore delivery in escrow it may be revoked under the same conditioa applicable to other contracts: Fitch v. Bunch, 30 CaL 208, Deeds — Grants — Conveyances. 183 Delivery at Moment of Death. — A deed in escrow to be delivered at the moment of the grantor's death is valid if so delivered: Schunr v. Bodenback, 133 Cal. 85, 65 Pac. 298. See, also, Huntley v. San Fran- cisco Sav. Union, 130 Cal. 46, 62 Pac. 255, when the deed was ' ' left with" a notary. Deed to Support Grantor in Escrow. — A deed was put in escrow under a contract that the grantee would support grantor during life, and that was the only consideration for the deed. If such condition is broken the grantor has an action to compel redelivery to him of the deed: How- lin V. Castro, 136 Cal. 605, 69 Pac. 432. Acceptance. — There is no delivery if there is no acceptance, express or implied: Bank of Healdsburg v. Bailhaiche, 65 Cal. 327, 4 Pac. 106. Acceptance may be shown by acts as well as words: Kidder v. Stevens, 60 Cal. 414. Acceptance is always a question of fact: Bensley v. Atwill, 12 Cal. 231. A deed beneficial to a grantee delivered to a third person without the grantee's knowledge or authorization or subsequent assent is subject to a judgment lien on the grantor's property that attached to the premises described in the deed after its delivery to the third per- son and before the assent to the deed by the grantee :'Hibberd v Smith, 67 Cal. 547, 56 Am. Eep. 726, 4 Pac. 473, 8 Pac. 46. Eights of Grantee Under Void Deed.— If a deed is, upon its face, void, a claimant under it is charged with knowledge of its invalidity. He does not even obtain color of title: Sunol v. Hepburn, 1 Cal. 254. In later cases it has been held that as to "color of title," Sunol v. Hep- bum went too far: See 77 CaL 496, 20 Pac. 56. Confirmation of Void Deed.— A void deed may be confirmed by a sub- sequent valid deed: Barr v. Schroder, 32 CaL 609. Mistake or Fraud in Deed.— Mistake in stating residence of grantee does not affect her rights: Stewart v. Sutherland, 93 Cal. 270, 28 Pac. 947. Parol evidence is admissible to show a mistake or fraud in a deed: Wagenblast v. Washburn, 12 Cal. 208. If the grantor intended to use the words he used in his deed, his mistake is as to the legal effect of his grant and he is bound by his words: Burt v. Wilson, 28 Cal. 632, 87 Am. Dec. 142. If a grantor executes two deeds to the same grantee,' and the second shows that he conveyed more than he intended, and the grantee accepts the second deed, and claims under it, a court wiU direct him to reconvey the surplus to the grantor: Sepulveda v. Sepulveda 77 Cal. 605 20 Pac. 145. Becital of a consideration does not relieve grantor from fraud: Brison v. Prison, 75 CaL 525, 7 Am. St. Eep. 189, 17 Pac. 689. Fraud Established.— If it is established that a deed was procured by fraud the judgment should be that the deed be canceled. It should not direct the grantee to recover: Upton v. Archer, 41 Cal. 85, 10 Am. Rep. 266; but if a grantee would voluntarily convey his deed, it would not be void. General Rules of Construction.— All courts when called upon will con- strue deeds, and they may or may not, on a question of law, follow the mling of the court below: MuLford v. Le Franc, 26 CaL 88- Moodv v Palmer, 50 Cal. 31. ' > ^ • Intent Governs.— Deeds are construed with reference to the intention of the parties, and the character, etc., of the subject matter of the contract. For the purpose of construction the entire instrument is al- ways considered: Martin v. Llovd. 94 Cal. 195, 29 Pac. 491; Stockton V. Weber, 98 Cal. 433, 33 Pac. 332; Brannan v. Mesick, 10 Cal. 95. See also, for an extended example, Faivre v. Daley, 93 Cal 664 ''9 Pac 256' Baker v. Clark, 128 Cal. 181, 60 Pac. 677. The intention b not to be wholly determined by the granting clause; the habendum clause may 184 New Book of Forms. prevail: Barnett v. Barnctt, 104 Cal. 298, 34 Pae. 1049. A fee simple title is presumed to be conveyed unless it appears from the deed that the grantor intended to grant a lesser estate: Pellissier v. Corker, 103 Cah 516, 37 Pac. 465. It is sometimes difficult to understand the meaning of general expres- sions sometimes found in cases of the same general nature in the same courts. In Solomon v. Wilson, 41 Cal. 59o, it is said: "Deeds [all deeds] are construed most strongly against the grantor." In Hager v. Spoct, 52 Cal. 579, it is said: "A deed [any deed] will be construed most strongly against the grantor." In Dodge v. Walley, 22 Cal. 224, 83 Am. Dec. 61, it is said: "Deeds [all deeiis] are always to be construed most strongly against the grantor when there is any uncertainty or am- biguity in their terms." In Piper v. True, 36 Cal. 606, it is said: "All doubts as to the meaning of them viv^t be solved in favor of the grantee." And in Sears v. Aekerman, 138 Cal. 583, 72 Pac. 349, it is said: " Eeservations and exceptions in grants [all grants] are to be in- terpreted in favor of the grantee." Deed Sustained— Construction of. — If a deed contains matter which is repugnant to its general intention, the repugnant matter is rejected. If possible, the intention of the parties is ascertained regardless of technical rules: Wilcoxson v. Sprague, 51 Cal. 640; Paivre v. Daky, 93 Cal. 664, 29 Pac. 256. The rule that public grants to private persons are to be construed strongly in favor of the grantor really means that the courts will uphold the grant only to the extent of its evident intentions: Culien v. Sprigg, 83 Cal. 56, 23 Pae. 222; Hostetter v. Los Angeles Terminal E, Co., lOS Cal. 38, 41 Pac. 330. Words in Deed Coustraed. — The same as in aU instruments, a deed ■will be construed according to the surrounding facts and general wording of it. Matters of convenience will not overrule express words: In re Vanee, 100 Cal. 425, 34 Pac. 1087; Fratt v. Woodward, 32 Cal. 219, 91 Am. Dec. 573; Morrison v. Wilson, 30 Cal. 344. Little weight is attached to technical definitions: Painter v. Pasadena Land etc. Co., 91 Cal. 74, 27 Pac. 539; but if it is apparent that the grantor used technical words to exjjress an idea different from its technical meaning, the in- tended meaning will prevail: Central Pacific R. R. Co. v. Beal, 47 Cal. 151. The v/ord "heirs" does not carry title to the grantee's heirs: Hunter v. Watson, 12 Cal. 363, 73 Am. Dec. 543. A deed of grant, bargain and sale, omitting all words of inheritance (such as his heirs, administrators, executors and assigns), conveys a fee simple title: Mont- gomery v. Sturdivant, 41 Cal. 290. See Painter v. Pasadena Land etc. Co., 91 Cal. 74, 27 Pac. 539. The word "grant" conveys the estate de- scribed, whatever may be its class: San Francisco R. R. Co. v. Oakland, .43 Cal. 502; but its meaning may be limited, and, if it is limited, the courts -wall carry out the expressed intention of the parties. A fee simple title is presumed to pass upon a grant of land, but if it does not appear from the grant that a lesser estate was intended to pass, a fee simple title passes: Pellissier v. Corker, 103 Cal. 516, 37 Pae. 465; Faivre V. Daley, 93 Cal. 664, 29 Pac. 256. The words "grant, bargain, sell and convey" operate as a release, and also transfer any interest which the grantor had in the land at the date of the deed: Muller v. Boggs, 25 Cal. 175. Situation of Parties — Circumstances. — When considering a doubtful description, a court will put itself in the position of the contracting parties to each other, and then consider all the circumstances of the transaction between them: Tmett v. Adams, 66 Cal. 218, 5 Pac. 96; and when the court has placed itself in that position, the intent of the parties is not apparent from the deed; it will resort to the rules of construction Deeds — Grants — Conveyancics. 185 which all conrts apply to f^ve pffoct to those thinjrs abont which the law presames the pajlies are least liable to miatake. If the intention cannot then be discovered, arbitrary rules may be applied: Kimball v. Semple, 25 Cal. 440. Evidence of the circumstances under which a deed was executed is ad- missible: Pico V. Ck)leman, 47 Cal. 47; Mulford v. Le Franc, 26 Cal. 88; Stanley v. Green, 12 Cal. 148; cited, 8 Colo. .'^99. 8 Pac. 569; but if the land can be identified by a construction of the deed, evidence aliunde will not be resorted to: Pulliam v. Bennett, 55 Cal. 368. If there is doubt about the meaning of expressions used, parol evidence may be admitted to explain: Reamer v. Nesmith, 34 Cal. 624; but operative words cannot be contradicted by such testimony: Rhine v. Ellen, 36 Cal. 362. If sev- eral parts of a grant are irreconcilable, the former part prevails, is de- clared to be the California rule in section 1070 of the Civil Code, but if there is only one part to a deed, that rule does not apply if the deed as a whole is complete: Pellissier v. Corker, 103 Cal. 516, 37 Pac. 465. Judicial Notice. — If a deed fails to name the meridian from which the township and range were numbered, described as being in Santa Cruz county, the court will take judicial notice that Mount Diablo meridian is the only meridian for to^vTlships and ranges in that county: Harring- ton V. Goldsmith, 136 Cal. 168, 68 Pac. 594. Habendum Clause. — It limits and defines the estate granted: Mont- gomery V. Sturdivant, 41 Cal. 290. If the habendum clause is irrecon- cilable with the premises, the premises prevail: Faivrc v. Daley, 93 Cal. 664, 29 Pac. 256. A quitclaim deed described the land with words explaining to what use it was to be put, which made an instrument so uncertain that reference was had to the habendum clause where the words "for the uses and purposes aforesaid" governed: Baker v. Clark, 128 Cal. 181, 60 Pac. 677. When the habendum clause of a deed of bargain and sale to A. had these words: "For the use of a Chinese church or place of religious worship and moral instruction under his [A's] direction and in con- formity to the rules of the See Yup Company," held that the legal title is in A, and that the deed does not raise any use or trust in favor of the See Yup Company, and that the company has no equitable title or interest in the property by force of the deed: Eldridge v. See Yup Co., 17 Cal. 44; cited, 8 Nev. 78. The ground for this conclusion was the fact that the limitation in the habendum clause as to the manner in which the property was to be used was inconsistent with the words, "grant, bargain, sell and convey to A." In Faivre v. Daley, 93 Cal. 671, 29 Pac. 256, it is said in referring to the case last above cited: "If we hold that the clause [habendum] quoted above is repugnant to the grant, and therefore void, we defeat the manifest intentio^n of all the parties, and this can be done only by the application of subtle and unsub- stantial definitions and technical and arbitrary rules"; and then cite Eldridge v. See Yup Co., 17 Cal. 51, which means that 17 Cal. 51 is "subtle and unsubstantial law," because not overruled. Interest, What Passes. — If the grantor has only a contract to purchase an interest in land, his interest passes: Brock v.'Poarson, 87 Cal. 581, 25 Pac. 963. If a clause states that the interest conveyed is onlj- that ac- quired by the grantor from B, and the grantor has not acquired any in- terest from B, but owns an interest acquired from C, the interest he ac- quired from C passes: Cited. 78 Cal. 277, 20 Pac. 566. See Barnett v. Bamett, 103 Cal. 516, 37 Pac. 465. as to life estates. A deed to husband and wife for their joint lives, and to the survivor during life, and remainder to the issue and heirs of their two bodies, and the heirs of such issue forever, vest a life estate in the grantees and i86 New Book of Forms. a full estate in their children: Montgomery v. Sturdivant, 41 CaL 290. A deed of bargain and sale by a husband to his wife and son by name and to such other heirs as his wife may have during marriage, and at her death to the children of the man-iage, their heirs and assigns, vesta the estate in the wife and son: Brenham v. Davidson, 51 Cal. 352. If a beginning point in a deed is a visible monument, and the descrip- tive calls are definite, a subsequent survey changing the location of a larger tract within which it is said in the deed the land conveyed was located does not impair the grantee's rights: Wilbur v. Washburn, 47 Cal. 67, A conveyance of an undivided half interest in a tract of land in which the grantor has only an undivided quarter passes the whole of such quarter interest: Jordan v. Fay, 98 Cal. 264, 33 Pac. 95. A deed of ' ' one-half of my lot ' ' makes the grantee tenant in common with the grantor: Lick v. O'Donnell, 3 Cal. 59, 58 Am. Dec. 383. If an owner grants an undivided one-third of a rancho, and retains adverse possession until the title of his grantee is extinguished and then conveys to another party the interest in said lands, "heretofore conveyed to said grantee, and all the undivided third part" of the whole tract, the latter convey- ance vests in the grantee, not the particular third first conveyed, but an undivided third without distinguishing which third: Hartman v. Beed, 50 Cal. 485. After-acquired Title. — A grant, bargain and sale deed carries to the grantee the title vested in the grantor at the date of the deed, and any title acquired by him thereafter: Dal ton v. Hamilton, 50 Cal. 422. This is also a law of California: C. C, sec. 1106. See Green v. Clark, 31 Cal. 591. Title acquired by prescription passes to prior grantee: Merrill v. Clark, 103 CaL 367, 37 Pac. 238. In California it is said that a grant of school lands which did not convey the title in fee simple made prior to the code did not carry the title the grantor subsequently ac- quired from the state: People v. Blake, 84 Cal. 611, 22 Pac. 1142, 24 Pac. 313. This rule is not defeated by taking the after-acquired title in the name of a third person who is a mere blind. A court of equity wiU attend to that: Quivey v. Baker, 37 CaL 465. See, also, Ayres v. Palmer, 57 Cal. 309. If a conveyance of grantor's right, title and interest contains a covenant of warranty, and if the grantor had no title, but afterward acquires it, the title does not pass: Barrett v. Birge, 50 Cal. 655; Kimball v. Semple, 25 Cal. 440; cited 1 Mont. 708. See, also, Gee v. Moore, 14 Cal. 472. Appurtenances. — Anything is appurtenant to land when it is by right ased with it: Cal. C. C, sec. 662. This section does not refer to the grantor's title to the appurtenance, but refers to the rightful use by which it has become an adjunct to the land: Crocker v. Benton, 93 Cal. 365, 28 Pac. 953. A grant carries with it without mention what- ever is appurtenant to it or necessary to its enjoyment: Cave v. Crafts, 53 CaL 135; cited 8 Mont. 231, 19 Pac. 571. See Sparks v. Hess,' 15 Cal. 186; Farmer v. Ukiah Water Co., 56 Cal. 11; Cross v. Kitts, 69 Cal. 217, 58 Am. Rep. 558, 10 Pac. 409. The grant of a messuage (old French, meaning house and offices for use of household), or a xnesauage with its appurtenances, will pass the dwelling-house and ad- joining buildings, and also its curtilage (also old French, meaning a yard, courtyard, or piece of ground lying near to a dwelling-house- bat it must be included within the same fence), and also its orchard and garden, within the close: Sparks v. Hess, 15 Cal. 186. As to mining claims, the one who asserts that a ditch and its water rights are appur- tenant to it is cast to prove it: Quirk v. Falk, 47 Cal. 453. See Coon- radt V. Hill, 79 CaL 587, 21 Pac. 1099; McShane v. Carter, 80 CaL 310, 32 Pac. 178. Deeds — Grants — Conveyances. 187 Water Right — Appurtenance. — A deed expressly jrranting a water right as appurtenant to land implies a covenant against a previous conveyance of it, and if when the negotiations for the sale of the land were begun by the grantee, and the water right was conveyed to a third person prior to the deed, the grantee has an action for breach of covenant: Lvles V. Perrin, 134 Cal. 417, 66 Pac. 472. See Los Angeles Terminul Land Co. v. Muir, 136 Cal. 36, 68 Pac. 308. Exceptions — Reservations. — "Exception" and "reservation" may mean the same thing: Painter v. Pasadena Land etc. Co., 91 Cal. 74, 27 Pac. 539. If a deed says it conveys "all the right, title and in- terest" of the grantor, and adds the words "being a one-half undi- vided interest," the entire interest of the grantor in the tract passes: McLennan v. McDonnell, 78 Cal. 273, 20 Pac. .566. This follows the mle that when two parts of a grant are irreconcilable the first part prevails: Martin v. Lloyd, 94 Cal. 19.5, 29 Pac. 491. If the part ex- cepted is described by courses and distances, it may or may not be repugnant: See Painter v. Pasadena Land etc. Co., 91 Cal. 74, 29 Pac. 539. If it is doubtful whether there was an intention in wording a deed to make a reservation, the grantor will be given the benefit of the doubt: Muller v. Boggs, 25 Cal. 175. See Upham v. Hasking, 62 Cal. 251; Grennan v. McGregor, 78 Cal. 258, 20 Pac. 559. A reservation in a grant of the right to oils, etc., in it, and the right to erect machinery, sink wells, tunnel, and work on it, has the right to go on the reservatien and tunnel and dig, but he has no right to use the land to store what he finds: Dietz v. Mission Transfer Co., 95 Cal. 92, 30 Pac. 380. See, also. Painter v. Pasadena Land etc. Co., 91 Cal. 74, 29 Pac. 539. A deed "with the exception of the timber which I reserve for my own use," leaves the fee simple in the grantor: Sears v. Ackerman, 138 Cal. 583, 72 Pac 171. Conditions in Deeds. — An estate upon condition cannot be created in a grant except when the terms of the instrument will admit of no other reasonable interpretation: Cullen v. Sprigg, 83 Cal. 56, 23 Pac. 222. It ifl not necessary to expressly state that the title shall vest only upon certain conditions. The word "provided," if frequently used, expresses i conditions: Stockton v. Weber, 98 Cal. 433, 33 Pac. 332.' An absolute deed when delivered carries the title free from conditions, and cannot be varied by parol of the grantor's intention that it was not to take effect before the grantor's death, and that that fact was known to the grantee: Mowry v. Ileney, 86 Cal. 471, 25 Pac. 17. If a grant deed contains a condition that the grantee shall not convey it without the grantor's consent, the condition is in restraint of alienation and void: Murray v. Green, 64 Cal. 363. Condition Precedent. — A condition that a payment should be made as stipulated, and when made the deed shall take effect, is a condition pre- cedent, and the instrument does not take effect until the condition is performed: Talbert v. Hopper, 42 Cal. 397; Mesick v. Sunderland, 6 Oal. 297. See Cay ton v. Walker, 10 Cal. 450; Hihn v. Peck, 30 Cal. 2S0. Failure to comply with a condition voids the deed: Stockton v. Weber, 98 Cal. 433, 33 Pac. 332; Brannan v. Mesick, 10 Cal. 95. If the grantor prevents the grantee from performing the conditions of a grant, the grantee is excused for nonperformance: Haughton v. Steel, 58 Cal. 421. Condition Subsequent, and Forfeiture. — A deed contained a condition that the grantee should maintain a lumber-yard on the land during five vears, but the grantee maintained the yard for less than one year. The grantor entered upon the land and demanded a reconveyance, which waa refused by the grantee, except upon condition that he would re- pay to him the purchase price. Held, that the grantor had an action i88 New Book of Forms. to compel a reconveyance of the land for a breach of the condition, and to remove the clond caiised by the record of his deed to the grantee: Parsons v. Smilie, 97 Cal. 647, 32 Pac. 702. See, also, Liebrand V. Otto, 56 Cal. 2-42. A condition to make certain improvements if vio- lated will avoid the deed: Quatman v. McCray, 128 Cal. 285, 60 Pac. 855. A deed on condition subsequent passes title to the grantee: Spect V. Gregg, 51 Cal. 198. A doed containing a condition subsequent which is unlawful: Cayton v. "Walker, 10 Cal. 450; and a grantor who places the legal title in another upon an unlawful condition subsequent cannot recover it by suit at law or in equity: Patterson v. Donner, 48 Cal. 369. If the condition is lawful, but thero is no time limit for its performance, and the condition becomes impossible, the grant is absolute: Vanderslice v. Hanks, 3 Cal. 27. See Stockton v. Weber, 98 Cal. 433, 33 Pac. 332. A forfeiture of real estate cannot be had for nonperformance of con- ditions precedent or subsequent unless there are two contracting parties who have at the same time, or successively, an interest in the estate upon which the condition is reserved, for the nonperformance of which the forfeiture is claimed: Wiseman v. McNulty, 25 Cal. 230. Forfeit- trres are not favored, and instruments containing them are construed strictly against a forfeiture, or as liberal as possible to prevent it: People ex rel. Davidson v. Perrv, 79 Cal. 105, 21 Pac. 423; Clary v. Folger, 84 Cal. 316, 18 Am. St. Rep. 187, 24 Pac. 280; Belcher Con. G. ivf. Co. V. Deferrari, 62 Cal. 160. Where a forfeiture and a right to enforce it are given by statute, and a procedure prescribed by which it may be enforced, no other remedy can be applied: Reed v. Omnibus R. R. Co., 33 Cal. 212. Questions as to the performance contained in a grant can only be made by the grantor: Buckelew v. Estell, 5 Cal. 108- Smith v. Brannan, 13 Cal. 107. If the condition is to use the land for a certain purpose, it is not broken by an irregular use for the de- scribed purpose: Behlow v. Southern Pacific R. R. Co., 130 Cal. 16, 62 Pac. S95. Covenant A.ortion8 as may be conveyed to purcliasers as above agreed or such portions as may be appropriated to roads or other improvements, as above stipulated, and shall receive the rents and profits thereof for hi- own use and benefit." Upheld: Wolf skill v. County of Los Angeles, 86 Cal. 405, 24 Pac. 1094. Lost Deed. — If a deed is lost or destroyed, a court of equity has aa- thurity to order a ntnv one executed. It was also held that one de- mand is sufficient: Cummings v. Coe, 10 Cal. 529; Conlin v. Ryan, 47 Cal. 71, It seems reasonable to suggest that an action to compel the grantor to execute a new deed would not be necessary in an action to quiet title under section 738, California Code of Civil Procedure, by a grantee not in possession. When Conlin v. Ryan wti3 decided, such action did not lie except in favor of a party in possession: See "Haben- dum Q&Qse. " 190 New Book of Forms. Assignment of Deed. — It is bold in California that title does not pass to land by indorsement or assignment of a deed. At most, only an equitable interest in the land passes by it: Dupont v. Witherman, 10 Cal. 354. Presumptions. — ^Under section 1105 of California Civil Code a fee simple is presumed to pass by grant of real property unless it clearly appears that a less estate was intended: Pellissier v. Corker, 103 Cal. 516, 37 Pac. 465. Validity of Deed — Rule of Property. — The decisions of the California courts upholding trust deeds have become a rule of property, and should not be disturbed even if erroneous, and the question is not now open to discussion. They are little more than a mortgage with a power to convey. They convey no right to possession; the land is subject to be held as a homestead as against a creditor not secured by the trust deed or other lien, and grantor may devise and transfer the property subject to the trust: Sacramento Bank v. Alcorn, 121 Cal. 379, 53 Pac. 813; Staacke v. Bell, 125 Cal. 309, 57 Pac. 1012. Trusts in Deeds. — Words expressive of an intent to create a trust mav be used in any deed, and when so used will be enforced: Eldridge V. See Yup Co., 17 Cal. 44. Such words appear to have been skillfully used in the grant construed in that case; but because they conflicted with a rule of law not permitting words granting, selling, and conveying to be nullified by a statement of the uses to which the subject granted was to be put, the See Yup Company took nothing by the grant. A deed intended to pass title cannot be nullified by the subsequent execu- tion of an invalid will reciting that the property was deeded in trust for certain purposes: Garnsey v. Gothard, 90 Cal. 603, 27 Pac. 516. See "Trust Deed."' Trust Deeds Generally. — A trust deed is a conveyance to a person in trust to do the things specified in it. The legal title passes to the gran- tee and he is given power to sell the property and transmit the title to the purchaser: More v. Calkins, 95 Cal. 435, 29 Am. St. Rep. 128, 30 Pac. 583; Green v. Butler, 26 Cal. 595; Powell v. Patison, 100 Cal. 234, 34 Pac. 676; Patridge v. Shepard, 71 Cal. 470, 12 Pac. 480; Grant v. Burr, 54 Cal. 298; cited, 8 Mont. 45, 19 Pac. 403. Such deeds are most strongly con- strued against the trustee: Sprague v. Edwards, 48 Cal. 239; Fuquay V. Stickney, 41 Cal. 583. If the instrument conveys land to another to secure the debt of a third person, it is not a mortgage, but a deed of trust: Bateman v. Burr, 57 Cal. 480; Durkin v. Burr, 60 Cal. 360; cited, 8 Mont. 45, 19 Pac. 403; Cormerais v. Genella, 22 Cal. 116; Felton v. Le Breton, 92 Cal. 457, 28 Pac. 490. In cases where there is; a doubt, what is claimed to be a trust deed will be held to be a mortgage: Banta v. Wise, 135 Cal. 277, 67 Pac. 129. A personal action cannot be brought to collect a debt secured by a tnist deed until the security is exhausted: Hodgkins v. Wright, 127 Cal. 688, 60 Pac. 431. Execution and Delivery of. — As a general rule, a trust deed to sell property and pay debts need not be delivered to pass the legal title to the grantee. The assent of the beneficiary is not necessary, nor is it neessary that the grantor should be indebted to him, but a creditor of the grantor may have the right to question it: Burr v. Schroder, 32 Cal. 609. Enforcement of Trust. — The death of the grantor does not revoke the trust nor limit the effect of the deed. It is not necessary to present to thii administrator of the grantor's estate the claims secured by the deed: More V. Calkins, 95 Cal. 435, 29 Am. St. Rep. 128, 30 Pac. 583. A deed DiciCDS — Grants — Conveyances. 191 to a party not a creditor authorizing him to sell the land at public auction and execute to the purchaser a deed of the land sold, upon de- fault in paying^ the debt or interest as it falls due, and out of the pro- ceeds to satisfy the trust generally and pay the surplus to the grantor, is not a mortgage requiring foreclosure and sale: Kock v. Briggs, 14 Cal. 256, 73 Am. Dec. 651; cited, 8 Mont. 44, 10 Pac. 403. A beneficiary under a trust deed may purchase at a sale in pursuance of the trust: Felton v. Le Breton, 92 Cal. 457, 28 Pac. 490; Savings etc. Soc. v. Deoring, G6 C"al. 281, 5 Pac. 353. If a person purchased at a trustee's sale under an agree- ment with the trustees that he should pay nothing for the property, and Bhould hold it subject to the discretion of the trustees, the sale is fraudu- lent and will be set aside: Scott v. Sierra Lumber Co., 67 Cal. 71, 7 Pac. 131. If the amount bid at a trustee's sale is paid by check, the Bale is good if the check was cashed. The fact that the trustee was the real creditor does not invalidate the sale: Gary v. Brown, 62 Cal. 373. Foreclosure Under Trust Deeds. — If a trust deed secures a number of bonds, any single bondholder may foreclose the deed for nonpayment of principal or interest; and this is so notwithstanding the fact that the deed provides that the trustee is only to act upon the written request of a majority of the bondholders; and a demand upon the debtor is not necessary to be made before action is commenced, and indemnity to the trustee need not be offered unless he demands it: Citizens' Bank V. Los Angeles Loan Co., 131 Cal. 187, 82 Am. St. Eep. 341, 63 Pac. 462. Accepting a Note of Grantor. — If the beneficiary accepts a promissory note of the grantor and his grantee in payment of all sums due, the trust is extinguished: Savings etc. Soc. v. Burnett, 106 Cal. 514, 39 Pac. 922. Strict Construction of Trust Deed. — Such sales will be strictly con- Btrued; but a sale for more than is due is not void in the absence of fraud, bad faith or actual damages, but the debtor has a right of action to recover the surplus: Savings etc. Soc. v. Burnett, 106 Cal. 514, 39 Pac. 922. Subsequent Advances. — When the creditor has the option to make pay- ments or advances on account of the debtor, the deed of trust cannot be enforced against subsequent encumbrancers of the debtor under a sec- ond deed of trust for advances made after the second deed of trust or encumbrances. The notice must be actual notice and not the con- structive notice given bv recording the encumbrances or deed: Saving etc. Soc. V. Burnett, 106* Cal. 514, 39 Pac. 922. Notice of Sale Under Trust — Recitals in Deed. — If the deed provides that in default of payment, and in the event of a sale, the recitals in any deed executed by the trustee should be conclusive evidence of such default, of the application of the creditor, the sale of the property, and the publication of the notice of sale, held, in the absence of fraud, the deed executed by the trustees is valid: Cary v. Brown, 62 Cal. 373. See note, "Enforcement of Trust." Sale and Deficiency. — Stockholders of a bank are not the bank, even if they are trustees of a trust deed to the bank; and a sale to the hank by the trustees is not a sale to themselves. If there is a deficiency, after the sale upon a promissory note for which the trust deed was security, an action lies upon it to recover the balance due after crediting the amount received from the sale loss the costs of sale: Copsey v. Sac- ramento Bank, 133 Cal. 659, 85 Am. St. Rep. 238, 66 Pac. 7. Reconveyance. — "When the trust is satisfied before sale it is the duty O" the trustees to convey the property to their grantor: Boswick v. Mc- Evory, 62 Cal. 496. See, also, Chapman v. Bank of California, 97 CaL 155. 31 Pac. 896. 192 New Book of Forms. Eedemption. — There is no redemption sale under trust deed which con- tains a power of sale: Koch v. Briggs, 14 Cal. 256, 73 Am. Dec. fiol. California Code Provisions to be Considered in Relation to Trust Deeds. — Sections 3617, 3627 and 3629 of the Political Code upon the sub- ject of taxation, recognizing trust deeds as property. Sections 574, 2872, 2924 of the Civil Code recognizing them by implication as a mode of securing loans. Those sections seem to constitute an exception to section 857 of the Civil Code, and in Sacramento Bank v. Alcorn, 121 CaL 379, 53 Pae. 813, the court held that they did. No, 236. — Deed of Administratrix. This Indenture, made the twentieth day of January, igo6, at the city and county of San Francisco, state of California, by and between M. J., the duly appointed, qualified, and acting adminis- tratrix of the estate of T. J., deceased, late of the city and county aforesaid, the party of the first part, and S. S. W., of the say}i>e place, the party of the second part, witnesseth : That whereas, on the seventh day of December, 1905, the su- perior court of the city and county of San Francisco, state of California, made an order of sale authorizing the said party of the first part to sell certain real estate of the said T. J., deceased, situated in said city and county of San Francisco, state of Cali- fornia, and specified and particularly described in said order of sale, either in one parcel or in subdivisions, as the said party of the first part should judge most beneficial to said estate. And which said order of sale, now on file and of record in the said superior court, is hereby referred to and made a part of this indenture. And whereas, under and by virtue of said order of sale, and pursuant to legal notices thereof, the said party of the first part, on the fourth day of January, 190^, at the auction salesroom of J. M., in said city and county, between the hours of nine o'clock in the morning and the setting of the sun on the same day, to wit : at tzvelve o'clock M., offered for sale in one parcel (judging it most beneficial to said estate), at public auction, and subject to confirmation of said superior court, the said real estate, situated in the said city and county, and specified and described in said order of sale as aforesaid, and at such sale the said party of the second part became the purchaser of the whole of said real estate hereinafter particularly described, for the sum of six thousand five hundred and seventy-Uve dollars. United States gold coin, he being the highest and best bidder, and that being the highest and best sum bid. And whereas, the said superior court, upon the due and legal return of her proceedings under the said order of sale, made by the said party of the first part on the fifth day of January, ipoj, after making the said sale, and upon dtte and legal notice of at Deeds — Grants — Conveyances. 193 least ten days, given as the law requires, did, on the eighteenth day of January, nineteen hundred and five, make an order con- firmin.^ said sale, and directing conveyances to be executed to the said party of the second part ; a certified copy of which order of confirmation was recorded in the office of said county recorder of said city and county, within which the said land sold is situ- ated, on the nineteenth day of January, 1905, which said order of confirmation now on file and of record in said recorder's office, are hereby referred to and made a part of this indenture. Now, therefore, the said M. J., administratrix of the estate of said T. J., deceased, as aforesaid, the party of the first part, pur- suant to the order last aforesaid, of the said superior court, for and in consideration of the sum of six thousand live hundred and seventy-five (6,jyj) dollars, United States gold coin, to her in hand paid by the said party of the second part, receipt whereof is hereby acknowledged, has granted, bargained, sold, and conveyed, and bv these presents does grant, bargain, sell, and convey unto the said party of the second part, his heirs and assigns forever, all the right, title, interest, and estate of the said T. J., deceased, at the time of his death, and also all the right, title, and interest that the said estate, by operation of law or otherwise, may have acquired, other than, or in addition to, that of said intestate, at the time of his death, in and to all that certain lot, piece, or parcel of land situate, lying, and being in said city and county of San Francisco, state of California, and bounded and described as fol- lows, to wit: [Description.] Together with the tenements, hereditaments and appurtenances whatsoever to the same belonging or in anywise appertaining. To have and to hold, all and singular the above mentioned and described premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns forever. In witness whereof, the said party of the first part, administra- trix as aforesaid, has hereunto set her hand and seal, the day and year first above written. NOTE. — The order of sale need not be recorded in the eounty re- corder's office, but the order confirming the sale must be: C. C. P., sec 1719. No. 237. — Deed — Simple Form. I, /. L., of the city and county of San Francisco, state of Cali- fornia, for "and in consideration of the sum of six thousand dol- lars. United States gold coin, do by these presents grant, bargain, sell, and convey unto H. J., of the same place, all that certain parcel of land situate in the city and county of San Francisco, state of California, and described as follows: [Description by metes and bounds.] New Forms — 13 194 New Book of Forms. To have and to hold the above granted and descrihed premises with all its appurtenances, unto the said H. J., his heirs and as- signs forever. NOTE. — The foregoing is as effectual to convey a lot of land as any form in the book; but as many lawyers have been so accustomed to the old forms, it is almost impossible for them to accept the change, al- though the words "grant, bargain and sell" are about the only words, except proper description, they will examine, even when a deed is offered in evidence; and, besides, they are considered the effectual words, and the long tenendum and habendum clauses are passed over as surplusage. It is good everywhere, unless a statute is found prescribing a different form. Care should be taken to insert the name of grantee in deed at tlu time of grantor signing and delivering the same, otherwise the execu- tion is imperfect, and will not vest title unless grantor gives written authority to insert any name one pleases, or subsequently ratifies the act by accepting the purchase price, or something to that effect. In the body of the instrument the names of grantor and grantee in full should be inserted instead of the initials. The description should be filled in with care, as much litigation has arisen from blunders of inexperienced persons in drawing deeds on account of this defect. All deeds must be acknowledged before recording. In California a seal is unnecessary. No. 238. — Deed — Bargain and Sale. This Indenture, made the fourteenth day of May, in the year IQ05, between /. B. H., of Lakeport, county of Lakeport, state of California, the party of the first part, and I. H. T., oi Big Valley, county aforesaid, the party of the second part, witnesseth : That the said party of the first part, for and in consideration of the sum of fifty dollars, gold coin of the United States, to him in hand paid by the said party of the second part, receipt whereof is hereby acknowledged, does by these presents grant, bargain, sell and convey unto the said party of the second part, and to his heirs and assigns forever: [Description.] Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in anywise appertain- ine. and the reversion and reversions, remainder and remainders, rents, issues and profits thereof. To have and to hold, all and singular, the said premises, to- gether with the appurtenances, unto the 'said party of the second part, and to his heirs and assigns forever. No. 239. — Deed — Bargain and Sale. This Indenture, made the fourteenth day of /Mn^,.in the year 190^, between /. W. R., of the town of Snelling, county of Mer- ced, state of California, the party of the first part, and /. D. W., of said to-wn, the party of the second part, witnesseth : That the said party of the first part, for and in consideration of the sum of four hundred and fifty dollars, gold coin of the United States of America, to him in hand paid by the said party Deeds — Grants — Conveyances. 195 of the second part, the receipt whereof is hereby acknowledged, does by these presents grant, bargain, and sell, convey, and con- firm unto the said party of the second part, and to his heirs and assigns forever, all that certain lot and parcel of land, situate in the said town of Snelling, in said county of Merced, state of California, and bounded and described as follows, to wit: [De- scription.] Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in anywise appertain- ing, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. To have and to hold, all and singular the said premises, to- gether with the appurtenances, unto the said party of the second part, his heirs and assigns forever. In witness whereof, the said party of the first part has here- unto set his hand and seal, the day and year first above written. No, 240. — Deed of Trust. This deed of trust, made this thirteenth day of October, in the year one thousand nine hundred and four, between L. A., of Ala- meda county, California, the party of the first part, and /. C. R., of San Francisco, California, the party of the second part, and F. R., of San Francisco, California, the party of the third part, witnesseth : That whereas the said party of the first part has borrowed of the said party of the third part the sum of twcnty- five thousand (25,000) dollars, in gold c in of the United States, and has agreed to repay the same on the thirteenth day of Octo- ber, in the year one thousand nine hundred and four, to the said party of the third part, in like gold coin with interest according to the terms of a certain promissory note, of even date herewith, executed and delivered therefor by the said party of the first part. Now this indenture witnesseth, that the said partv of the first part, in consideration of the aforesaid indebtedness to the said party of the third part; and for the purpose of securing the pav- ment of said promissory note, and of any sum or sums of money, with interest thereon, that may now or hereafter be paid or ad- vanced by, or may otherwise be due to, the parties of the second or third part under the provisions of this instrument, does by these presents grant unto the party of the second part, and to his successors and assigns, the piece or parcel of land situated in Murray tozvnship, county of Alameda, and state of California, described as follows: [Description.] And also, all the interest, or other claim or demand, which the said party of the first part _now ha^ or may hereafter acquire of, in and to said premises with the appurtenances. To have and to hold, the same to the party of the second part and to his successors and assigns [// a plural number of the sec- 19^ New Book of Forms. « ond party and to the survivors of them in joint tenancy'], upon the trusts and confidence hereinafter expressed, to wit: Firstly, during the continuance of these trusts, the partj; of the second part and the part^? of the third part, their successors and assigns, are hereby authorized to pay, without previous notice all or any liens, and all or any encumbrances now subsisting, or that may hereafter exist upon said premises (excepting taxes and assessments imposed upon this deed of trust or the money secured hereby) which may in their judgment, aflfect said prem- ises or these trusts ; and they may in their discretion at the ex- pense of said party of the first part, contest the payments o\ any such liens or encumbrances, or may defend any suit or pro- ceeding that they may consider proper to protect the title to said premises, and may insure buildings on said premises, and these trusts shall be and continue as security to the party of the third part, and his assigns, for the repayment, in gold coin of the United States, of the money so borrowed by the said party of the first part and the interest thereon, and of all amounts so paid out and costs and expenses incurred, as aforesaid, with in- terest on such payment at the rate of one per cent per month until final payment. Secondly, in case the said party of the first part shall well and truly pay, or cause to be paid, at maturity, in gold coin as afore- said, all sums of money so borrowed, as aforesaid, and the in- terest thereon, and shall upon demand repay all other moneys secured or intended to be secured hereby and also the reasonable expenses of this trust, then the party of the second part,* his successors and assigns, shall reconvey all the estate in the prem- ises aforesaid to the party of the first part at his request and cost. Thirdly, if default shall be made in the payment of any of said sums of principal or interest, when due, in the manner stip- ulated in said promissory note, or in the reimbursements of any amounts herein provided to be paid, or of any interest thereon; then the said party of the second part, his successors or assigns, on application of the party of the third part, or his assigns, shall sell the above-granted premises, or such part thereof as in his discretion, he shall find it necessary to sell in order to accomplish the objects of these trusts, in the manner following, namely: He shall first publish the time and place of such sale, with a descrip- tion of the property to be sold, at least once a week for fouf weeks, in some newspaper published in the said county of Ala^ meda, and may from time to time postpone such sale by publi- cation ; and on the day of sale so advertised, or any day to which such sale may be postponed he may sell the property, so adver- tised, or any portion thereof at public auction, in any county •If there is more than one trustee, add, "to the survivor of them in joint tenancy." Deeds — Grants — Conveyances. 197 where any part of said property may be situated, to the hic^diest cash bidder; and the holder or holders of said promissory note, his agents or assigns and the party of the second part may bid and purchase at such sale. And the party of the second part, or assigns, shall establish as one of the conditions of such sale, that all bids and payments for the said property shall be made in like gold coin as aforesaid, and upon such sale he shall make, execute, and after due payment made, shall deliver to the purchaser or purchasers, his or their heirs and assigns, a deed or deeds of grant, bargain and sale of the above-granted premises, and out of the proceeds thereof shall pay, First, the expenses thereof, together with the reasonable ex- penses of this trust, including counsel fees of Hve hundred dol- lars, in gold coin, which shall become due upon any default made by the said party of the first part in any of the payments afore- said. Second, all sums which may have been paid by the said party of the second or third part, their successors or assigns, or the holders of the note aforesaid, and not reimbursed, and which may then be due, whether paid on account of encumbrances or insur- ance, as aforesaid, or in the performance of any of the trusts herein created, and with whatever interest may have accrued thereon, next the amount due and unpaid on said promissory note, with whatever interest may have accrued thereon ; and lastly the balance or surplus of such proceeds, if any, to said party of the first part, his heirs or assigns. And in the event of the sale of said premises or any part there- of, and the execution of a deed or deeds therefor, under these trusts, then the recitals therein of default and publication shall be conclusive proof of such default and of the due publication of such notice ; and of any such deed or deeds with such recitals therein shall be effectual and conclusive against the said partv of the first part, his heirs or assigns, and all other persons ; and the receipt for the purchase money contained in any deeds exe- cuted to the purchaser, as aforesaid, shall be a sufficient dis- charge to such purchaser from all obligations to see to the proper application of the purchase money, according to the trusts afore- said. No. 241. — Trust Deed. This deed of trust, made this sixteenth day of June, iQOj. be- tween /. S., of the eity and county of San Francisco, the partv of the first part, and /. D. F., R. B. S. and A. C, senior, of San Francisco, California, parties of the second part, and the San Francisco Saril, m the year ipo^, between /. A. C, of the county of Sierra, state of California, the party of first part, and W. C, his son, of said county, the party of the second part, witnesseth : That the said party of the first part, for and in consideration of the love and aft'ection which the said party of the first part has and bears unto the said party of the second part, as also for the better maintenance, support, protection and livelihood of the said party of the second part, does by these presents give, grant, alien, and confinn unto the said party of the second part, and to his heirs and assigns forever, all [description]. Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in anywise appertain- ing, and the reversion or reversions, remainder and remainders, rents, issue, and profits thereof. To have and to hold, all and singular, the said premises, to- gether with the appurtenances, unto the said party of the second part, his heirs and assigns forever. No. 244. — Guardian's Deed- This Indenture, made the eighth day of April, iQO$. at the city and county of San Francisco, state of California, by and be- tween M. J., the duly appointed, qualified, and acting guardian of the persons and estates of W. J., A. J., K. J., C. J., E. J. and H. J., minors, the party of the first part, and B. R. of the said city and county, the party of the second part, witnesseth : That whereas, on the fourteenth day of June, ipoj, the superior court of the said city and county of San Francisco, state of Cali- fornia, duly made an order of sale, authorizing the said party of the first part to sell certain real estate of the said minors, situ- ated in said city and county of San Francisco, state of California, and specified and particularly described in said order of sale. And whereas, under and by virtue of said order of sale, and pursuant to legal notices given thereof, the said party of the first part, on the fourteenth day of July, ipo§, at the auction salesrooms of S. P. M., in said city and county, at tzvelve o'clock M., offered for sale, in one parcel, at public auction, and subject to confirmation by said superior court, the said real estate, situ- ated in the said city and county, and specified and described in said order of sale aforesaid, and at such sale the said party of the second part became the purchaser of the whole of said real estate, hereinafter particularly described, for the sum of fourteen hundred dollars, gold coin of the United States, he being the 200 New Book of Forms. hi2:hest and best bidder and that being the highest and best sttra bid. And whereas, the said superior court, upon the due and legal return of her proceedings under the said order of sale, made by the said party of the first part on the first day of April, ipoj, after making the said sale, upon due and legal notice of at least ten days, given in such manner as the judge of said court had directed, did, on the said first day of April, 1905, make an order confirming said sale, and directing conveyances to be executed to the said party of the second part, a certified copy of which order of confirmation was recorded in the office of the said county re- corder of the said city and county, within which the said land sold is situated, on the second day of April, iQOj, which said order of confirmation now on file and of record in said recorder's office, are hereby referred to and made a part of this indenture. Now, therefore, the said M. J., the guardian of the persons and estates of the above-named minors, as aforesaid, the party of the first part, pursuant to the order last aforesaid, of the said superior court, for and in consideration of the said sum of four- teen hundred dollars, gold coin of the United States, to her in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, and con- veyed, and by these presents does grant, bargain, sell, and con- vey unto the said party of the second part, his heirs and assigns, forever, all the right, title, interest and estate of the said W. J., A. J., K. J., C. J., B. J., and B. J., minors, in and to all that certain lot, piece, or parcel of land, situated, lying, and being in the said city and county of San Francisco, state of California, and bounded and particularly described as follows, to wit: [De- scription.] Together with all the tenements, hereditaments and appurte- nances to the same belonging or in anywise appertaining; To have and to hold, all and singular, the above-mentioned and described premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns forever. In witness whereof, the said party of the first part, guardian as aforesaid, has hereunto set her hand and seal, the day and year first above written. No. 245. — Deed from Husband to Wife. This Indenture, made this, etc., between A. B., of, etc., of the first part, and C. B., the wife of said A. B., of the second part, witnesseth : That the said party of the first part, for and in consideration of the love and affection which he bears toward his wife, the said C. B., and for the purpose of making her a gift [or, for the purpose of compensating certain advances and benefits of money Peeds — Grants — Conveyances. 201 and property which she brought to said party of the first part by or since their marriage, or for other purposes, as may be], does hereby give, grant, alien, and convey, unto his wife, said party of the second part, all that certain property: [Description.] To have and to hold the same unto the said party of the sec- ond part, her heirs and assigns, for her own sole and separate use, benefit, and behoof forever. To hold and enjoy, all and singular the same, and every part and parcel thereof, as and for her separate estate, especially re- linquishing for himself and his heirs all right or claim to the same, or any part thereof, as community property, so that the same may be held by her as separate, and not in any respect as community property. No. 246. — Deed of Mining Claim. This Indenture, made the eighteenth day of April, in the year 7905, between F. G., of the city and county of San Fran- cisco, state of California, the party of the first part, and W. C, of Santa Catalina, county of Los Angeles, state of California, the party of the second part, witnesseth : That the said party of the first part, for and in consideration of the sum of five thousand dollars, gold coin of the United States of America, to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, does by these presents grant, bargain, sell, remise, release and forever quitclaim unto the said party of the second part and to his heirs and assigns, two hundred (200) feet, undivided, in that certain mining claim, vein, lead, or lode, containing gold or silver and other precious metals, situate, lying and being in the Santa Cata- lina Island Mining District, in the Island of Santa Catalina, County of Los Angeles, state of California, and known as the "Perseverance" vein, lead, or lode. Together with all the dips, spurs, and angles, and also all the metals, ores, gold, and silver bearing quartz, rock and earth therein ; and all the rights, privileges, and franchises thereto incident, appendant, and appurtenant, or therewith usually had and enjoyed ; and also all and singular the tenements, heredita- ments and appurtenances thereto belonging or in anvwise ap- pertaining, and the rents, issues, and profits thereof. To have and to hold, all and singular the said premises, to- gether with the appurtenances and privileges thereto incident, unto the said party of the second part, his heirs and assigns for- ever. No. 247. — Deed to Incorporate a Mining Company. This Indenture, made the sixth day of August, 1905, between the undersigned, the parties of the first part, and the "IV. G. and S. M. Co.," the party of the second part, witnesseth: 202 New Book of Forms. That whereas, the said "W. G. and S. M. Co." has been duly incorporated under the laws of the state of California, and it is intended by this instrument to transfer to the said parties of the second part all the right, title and interest of the said parties of the first part, which they and each of them have and claim in and to the mining ground and claim or lode and its appur- tenances, hereinafter described. Now, therefore, know all men by these presents, that the said parties of the first part and each of them whose names are here- unto subscribed, in consideration of certificates of stock in said incorporated company hereafter to be issued to them, their and each of their heirs and assigns, in conformity with the by-laws of said corporation heretofore adopted, do by these presents grant, bargain, sell, transfer, remise, release, and quitclaim unto the said party of the second part, its successors and assigns, all their and each of their right, interest, claim, and demand whatsoever, in law or equity, of, in, or to all that certain mining ground, claim, or lode, situate, lying, and being in Cove Mining District, Kern River, county of Tulare, and state of California, and known as the "Winter" lead or lode. Together with all the dips, angles, spurs, and variations of said mining ground, claim, or lode, and all and singular the hereditaments and appurtenances thereunto belonging. To have and to hold the said premises, with their appur- tenances, unto the said party of the second part, its successors and assigns forever. No. 248. — Deed to Incorporate a Mining Company — Another Form. This Indenture, made the first day of August, ipoj, between D. S. [naming others], parties of the first part, and the H. G. L. G. and S. M. Co., whose principal place of business is at the city and county of San Francisco, state of California, party of the second part, witnesseth : That whereas, the said H. G. L. G. and S. M. Co. has been duly incorporated under the laws of the state of California, to which it is intended by this instrument to transfer all the right, title, and interest of the parties of the first part, which they and each of them have and claim in and to the mining ground and claim or lode and its appurtenances hereinafter described. And whereas, on the tenth day of June, ipoj, ten mining claims of two hundred feet each, making in the aggregate tzuo thousand feet, were duly taken up, located, and recorded in the Betdah District, situated in the county of Mono, state of Cali- fornia, according to the usages of said mining district ; and whereas, we, the undersigned, are the owners of the number of Deieds — Grants — Conveyances. 203 feet set opposite to each of our names respectively, as fo/iows, viz. : NAMES. NUMBER OF FEET. Smith [and others]. Two hundred. Said claim or claims beings called and known by the name of G. S. & Company's claims. [Here insert particular description.] Now, therefore, know all men by these presents: That the parties of the first part, and each of -them, whose names are hereunto subscribed, in consideration of certificates of stock in said incorporated company, hereafter to be issued to them, they and each of them, and assigns, in accordance with the certificate of incorporation, and in conformity with the by-laws of said corporation, do by these presents grant, bargain, sell, transfer, remise, release, and quitclaim unto the said H. G. L. G. and S. M. Co., all their and each of their right, title, interest, claim and demand whatsoever, in law or in equity, of, in and to all said mining ground, claim, or claims, or quartz lode, situate, lying, and being in said mining district, and described as afore- said ; together with all the dips, angles, spurs, and variations of said mining ground and quartz lode, and all and singular the hereditaments and appurtenances ; and all and singular the min- ing tools, arastras, forges, furnaces, and smelting apparatus thereunto belonging. To have and to hold the said premises with their appur- tenances, unto the said H. G. L. G. and S. M. Co., its successors, and assigns forever. No. 249. — Deed by a Corporation. This Indenture, made this third day of September, igo^, by and between The Y. B. M. Co., a corporation duly organized un- der the law of the state of California, whose principal place of business is in the city and county of San Francisco, state of California, party of the first part, and /. A^. W. and J. M. P., of said city and county, parties of the second part, witnesseth : That whereas, the said party of the first part is a corporation duly incorporated and existing under and by virtue of the laws of the state of California, and in pursuance of the statutes in such cases made and provided, has acquired and is the owner of a certain mine known as The Y. B. Mine, situate in Bi^ Cot- tonwood Mining District, Salt Lake county, UtaJi Territory; and whereas, the board of trustees of said corporation, duly assembled, duly passed the following resolution : "/^ is resolved by the trustees of the Y. B. M. Co., that it is for the best interest of said company to sell and convey said mine, for the sum of thirty thousand dollars, gold coin of the United States, and apply the proceeds of such sale for the pay- ment of the debts of said company, and H. N. B., president, and 204 New Book of Forms. /. S., secretary, of said Y. B. M. Co., are hereby directed and authorised to make, execute and deliver, for and in behalf of said Y. B. M. Co., and as its act and deed, to said W. and P., a conveyance of said mine and mining location [give general description], and to affix to said conveyance the corporate name and seal of said corporation." Now, therefore, in pursuance of said resolution aforesaid, and in consideration of the sum of thirty thousand (^0,000) dollars, United States gold coin, paid by said parties of the second part, the receipt whereof is hereby acknowledged, the said party of the first part doth by these presents grant, bargain, sell, convey and confirm unto the said parties of the second part, their heirs and assigns forever: [Full description.] Together with all the dips, spurs, and angles, and also all the metals, ores, gold and silver-bearing quartz, rock and earth therein ; and also all and singular the tenements, hereditaments and appurtenances thereto belonging or in anywise appertain- ing, and the rents, issues, and profits thereof. To have and to hold, all and singular, the said premises, to- gether with the appurtenances and privileges thereto incident, unto the said party of the second part, heirs and assigns for- ever. In witness whereof, the said party of the first part, by resoln- tion of its board of directors, hath caused these presents to be subscribed by its president and secretary, and its corporate name and seal to be hereunto affixed, the day and year first above written. NOTE. — Corporations organized for the purpose of mining cannot sell, lease, mortgage, or otherwise dispose of the whole or any part of the eorporation 's mining ground, unless such act be ratified by the holders of a least two-thirdis of the capital stock: Cal. Stats. 1880, p. 131. No. 250. — Deed — Quitclaim. This Indenture, made the tenth day of April, in the year 190^, between M. L. C, of the city and county of San Francisco, state of California, the party of the first part, and A. W. and /. B., of the said city and county, the parties of the second part, witnesseth : That the said party of the first part, for and in consideration of the sum of one hundred dollars, lawful money of the United States of America, to him in hand paid by the said parties of the second part, the receipt whereof is hereby acknowledged, does by these presents remise, release, and forever quitclaim unto the said parties of the second part, and their heirs and assigns, all that certain lot, piece, or parcel of land, situate in the said city and county of San Francisco, state of California, and bounded and particularly described as follows, to wit: [Descrip- tion.] Deeds — Grants — Conveyances. 205 Together with all and sinc^ular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertain- ing, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. To have and to hold, all and singular the said premises, to- gether with the appurtenances, unto the said parties of the second part and to their heirs and assigns forever. No. 251. — Quitclaim Deed. This Indenture, made the seventh day of April, in the vear 7905, between P. R. and A. R., his zvife, of the county of Mon- terey, state of California, parties of the first part, and F. B., of the county of Los Angeles, state of California, the party of the second part, witnesseth : That the said parties of the first part, for and in consideration of the sum of one thousand five hundred dollars, lazvfu! money of the United States of America, to them in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, have remised, released, and forever quitclaimed, and by these presents do remise, release, and forever quitclaim, unto the said party of the second part, and to his heirs and as- signs, all [description]. Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertain- ing, and the rents, issues and profits thereof. To have and to hold, all and singular the said premises, to- gether with the appurtenances, unto the said party of the second part, and to his heirs and assigns forever. No. 252. — Quitclaim Deed — Another Form. This Indenture, made the twelfth day of January, in the year ipoj, between 7?. /., of the county of N'apa. state of Cali- fornia, the party of the first part, and G. B., of the city and county of Sacramento, state of California, the party of the second part, witnesseth : That the said party of the first part, for and in consideration of the sum of tzvo hundred and fifty-five dollars, laivful money of the United States of America, to him in hand paid bv the said party of the second part, the receipt whereof is hereby ac- knowledged, does by these presents grant, bargain, sell, convey, remise, release and forever quitclaim, unto the said partv of tlie second part, and to his heirs and assigns, all the right, title, interest, estate, claim and demand, both at law and in equity, and as well in possession as in expectancy, of the said party of the first part, of, in, and to all that certain lot and parcel of land, situate in the city and county of San Francisco, state of California, and bounded and described as follows, to wit: [De- scription.] 2o6 New Book of Forms. Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertain- ing, and the rents, issues, and profits thereof. To have and to hold, all and singular the said premises, to- gether with the appurtenances, unto the said party of the second part, his heirs and assigns forever. No. 253. — Deed of Right of Way. WTiereas, certain of the inhabitants of road district number three of San Mateo county, taxable therein for road purposes, have petitioned in writing the Board of Supervisors [or, com- missioners of highways, as the case may be] of said San Mateo county, to lay out a new road therein, as set forth in their peti- tion, dated the fourth day of April, ipo^, which said road is proposed to be located as follows, to wit: [Description.] Now, therefore, in consideration of the location and establish- ment of said road, as above described, and of the benefits to accrue to us and each of us by such location, we, the under- signed, owners, occupants and claimants of land required for road purposes on the line of the foregoing designated route, hereby signify our approval of the location of said road, and do hereby consent thereto ; and we do hereby grant and dedicate the lands belonging to us and each of us, so far as the same may be required for such road, to said county of San Mateo, to that purpose and for the use of such road ; and we hereby waive all claims for damage for and on account of the same. No. 254. — Sheriff's Deed on Execution. This Indenture, made this tzvcnty-fourth day of August, 1905, between P. J. W., sheriff of the city and county of San Francisco, state of California, of the first part, and /. D., of the city and county of San Francisco, state of California, the party of the second part: Whereas, by virtue of a writ of execution issued out of, and under the seal of the superior court of the said city and county, tested the fourth day of January, ipoj, upon a judgment recov- ered in said court, on the second day of January, ipo^, in favor of G. W. and against /. C, to the said sheriff directed and deliv- ered, commanding him that of the personal property of the said judgment debtor, /. C, in his county, he should cause to be made certain moneys in the said writ specified, and if sufficient personal property of the said judgment debtor, /. C, ccroXd not be found, that then he should cause the amount of said judg- ment to be made of the lands, tenements and real property be- longing to said judgment debtor, /. D., on the second day of January, ipo^, or at any time afterward ; and whereas, because sufficient personal property of the said judgment debtor. /. D., could not be found, whereof he, the said sheriff, could cause Deeds — Grants — Conveyances. 207 to be made the moneys specified in said writ, he, the said shcrifT, (lid, m obedience to said command, levy on, take, and seize all the estate, right, title, and interest, which the said judgment debtor, /. D., so had, of, in, and to the lands, tenements, real estate and premises hereinafter particularly set forth and de- scribed, with the appurtenances, and did, on the thirtieth day of January, 7905, sell the said premises, at public vendue, in front of the City Hall, in the city and county of San Francisco, between the hours of nine in the morning and five in the after- noon of that day, namely, at twelve o'clock, after having first given notice of the time and place of such sale, by advertising the same according to law ; at which sale the said premises were struck oflf and sold to the said party of the second part, for the sum of ten thousand dollars, gold coin of the United States, the said party of the second part being the highest bidder, and that being the highest sum bidden, and the whole price paid for the same; and whereas, the said sheriflf, after receiving from said purchaser the said sum of money so bidden as aforesaid, gave to the said party of the second part such certificate as is by law directed to be given, and filed and recorded in the office of the county recorder of the city and county of San Francisco, a dupli- cate of such certificate ; and whereas, six months after such sale have expired without any redemption of the said premises having been made: [Recite assignment here, if any.] Now, this indenture witnesseth, that P. J. W., sheriff aforesaid and party hereto, of the first part, by virtue of the said writ and in pursuance of the statute in such case made and provided, for and in consideration of the sum of money above mentioned, to him in hand paid as aforesaid by the said party of the second part, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, conveyed and confirmed, and by these presents doth grant, bargain, sell, convey and confirm unto the said party of the second part, and to his heirs and assigns, all the estate, right, title and interest which the said judgment debtor, the said /. C, had on the second day of January, ipoj, or at any time afterward, or now has of, in and to all the following described premises, situate, lying and being in the city and county of San Francisco, \\z.: [Description.] Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertain- ing^ To have and to hold the said premises, with the appurtenances, unto the said party of the second part, his heirs and assigns forever, as fully and absolutely as he, the sheriff aforesaid, can, may, or ought to, by virtue of the said writ and of the statute in such case made and provided, grant, bargain, sell, release, consign, convey and confirm the same. 2o8 New Book of Forms. No. 255. — Sheriff's Deed on Foreclosure. This Indenture, made this tivetity-second day of August, .^po^, between P. H., sheriff of the city and county of San Fran- cisco, of the first part, and /. D., of the city and county of San Francisco, of the second part, witnesseth : Whereas, in and by certain judgment or decree rendered by the superior court of the city and county of San Francisco, state of California, on the tenth day of April, ipo§, and entered on the tzvclfth day of April, ipo§, in a certain action then pending in said court, wherein /. /. zvas plaintiff, and P. S., R. R., B. S. and J. S. were defendants, and of which said judgment or de- cree a certified copy was deHvered to said party of the first part, as such sheriff, for execution, it was, among other things, or- dered, adjudged and decreed, that all and singular the mort- gaged premises described in the complaint in said action, and specifically described in said judgment or decree, be sold at pub- lic auction by the sheriff of the city and county of San Francisco, in the manner required by law, and according to the course and practice of said court; that such sale be made in front of the City Hall, in the city and county of San Francisco, between the hours of nine o'clock in the forenoon and five o'clock in the after- noon, on such day as the said sheriff shall appoint; that any of the parties to said action might become the purchaser at such sale; and that said sheriff execute the usual certificates and deeds to the purchaser, as required by law ; And whereas, the said sheriff did, at the hour of twelve o'clock, noon, on the second day of February, 1905, after due public no- tice had been given, as required by the laws of this state, and the course and practice of said court, duly sell at public auction, in front of the City Hall, in the city and county of San Francisco, agreeably to the said judgment or decree, and the provisions of law, the premises in the said decree or judgment mentioned; at which sale the premises in said judgment or decree, and herein- after described, were fairly struck off to the said J. D., the said party hereto of the second part, for the sum of Hve thousand dollars, gold coin of the United States, he being the highest bidder, and that being the highest sum bidden for the same ; And whereas, the said party of the second part thereupon paid to the said sheriff the said sum of money so bidden by him ; And whereas, the said sheriff thereupon made and issued the usual certificate, in duplicate, of the said sale, in due form of law, and delivered one thereof to the said purchaser, and caused the other to be filed and recorded in the county recorder's office of the city and county of San Francisco ; And whereas, more than six months have elapsed since the date of said sale, ana no redemption has been made of the prem- Deeds — Grants — Coi^vtYANC£S. 209 iscs so sold, as aforesaid, by or on behalf of the said judgment debtors, the said defendants, or by or on behalf of any other jjcrson : [Recite assignment here.] Now, this indenture witnesseth, that the said party of the first part, the said P. H., sheriff, in order to carry into effect the sale so made by him as aforesaid, in pursuance of said judgment or decree, and in conformity to the statute in such case made and provided, and also, in consideration of the premises and of the said sum of five thousand dollars, gold coin of the United States, so bidden and paid to him by the said purchaser, the said /. D., the receipt whereof is hereby acknowledged, hath granted, bar- gained, sold and conveyed, and by these presents doth grant, bar- gain, sell, and convey unto the said party of the second part, and to his heirs and assigns forever: [Description.] Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertain- ing, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. To have and to hold, all and singular, the premises above men- tioned and described, and hereby conveyed, or intended so to be, together with the appurtenances, unto the said party of the sec- ond part, his heirs and assigns forever. No. 256. — Tax Deed. No. ^j2, — Block ^64- — Page 6^- — Sub. 464. "Vol. 5 — ^Page 7^.* Conveyance of Real Estate, for Delinquent Taxes of 1904-05. This Indenture, made and entered into this twentieth day of September, in the year of our Lord, one thousand nine hundred and five, between G. W. G., tax collector of the county of San Mateo, state of California, party hereto of the first part, and W. ]., of the same place, party hereto of the second part, witnesseth : That whereas, I, G. IV. G., heretofore, and at the time of the levy and publication hereinafter mentioned, was tax collector of the county of San Mateo, and by virtue of, and in conformitv with, chapter VII. title IX of part III of the "Political Code of the State of California," approved March 12, 1872, and put into effect by an act of the legislature of the state of California, entitled "An act to put into immediate effect certain parts of the Polifical and Penal Codes," approved March 16, 1872, and all acts amendatory thereof or supplementary thereto, did on the third Monday in January, 1905, deliver to the Auditor of said county a complete "Delinquent List," of all persons and property then owing taxes in said county to the state of California and to •Such reference to books, etc., is for convenience in tracing title, there being separate books, etc., for each year. New Forms — 14 2IO New Book of" Forms. the county of San Mateo, together with the costs and charges due thereon; which said "DeHnquent List" did include the prop- erty first hereinafter described in this certificate. That the said property was assessed for the fiscal year ending June 30, ipo§, for state and county taxes, at $10,0^0.00, to Mary Muggins [or if the owner is not known, to all unknown owners or claimants] ; that the property assessed, levied upon, and advertised, situate, lying and being within the county of San Mateo, and described thus: Lot commencing on the northwest line of Mission street, i§o feet northeast from New Anthony street; thence running northeast 48 feet; thence northwest 100 feet; thence southwest 48 feet, and thence southeast 100 feet, to the point of beginning; was by me, the tax collector as aforesaid, on the fourth day of March, ipo^, in accordance with law, offered for sale, to pay said taxes, with the costs and charges due thereon, at public auction, in front of the county courthouse in said county ; that at said auction 7. Y. B. ivas the bidder who was willing to take the least quantity of, or smallest portion of the interest in, said land, and pay the taxes, costs, and charges due thereon ; which taxes, costs, and charges, including two dollars for certificate of sale, amounted to one hun- dred and seventy-one dollars and thirty-four cents ($111.^4) ; that the said least quantity of, or smallest portion of the interest in, said land, lying and being within the county of San Mateo, as is hereinafter described, to wit: The lot of land commencing on the northivest line of Mission street at a point distant one hundred and -fifty (150) feet northeasterly from Nezv Anthony street; thence running northeasterly on the northwesterly line of Mission street forty-eight (48) feet; thence at right angles northzvesterly one hundred fioo) feet; thence at right angles southzvesterly forty-eight (48) feet, and thence at right angles southeasterly one hundred (100) feet to the point of beginning, was, by me, G. IV. G., tax collector as aforesaid, struck off to the said /. Y. B., who paid the full amount of said taxes, costs and charge, and there- fore became the purchaser of the last described piece or parcel of land so sold for said taxes as aforesaid ; that the said real estate was sold subject to redemption, pursuant to the statute in such cases made and provided ; and whereas, no person has re- deemed the property aforesaid during the time allowed by law for its redemption, and stated in the certificate of sale therefor. And whereas, the said J. Y. B. has duly assigned his certitfcate of sale, and all his rights thereunder, unto the said party of the second part, as appears from said certificate of sale and assign- ment thereof, nozv on fde in the tax collector's ofhce in said county. Now, therefore, this indenture witnesseth, that, for and in con- sideration of the sum of one hundred and seventy-one dollars and ihirtv-four cents ($i7i.;^4), to me in hand paid, the receipt where- Di^iCDS — Grants — Conveyances. 211 of is hereby acknowledged, I, G. W. G., tax collector, as afore- said, by virtue and in pursuance of the statutes in such cases made and provided, have granted, bargained, sold, conveyed, and confirmed, and by these presents do grant, bargain, sell,' convey, and confirm unto the aforesaid W. J., and to his' heirs and assigns forever, all that lot, piece, or parcel of land so sold, and herein- before and last described in this deed, as fully and absolutely as I, G. IV. G., tax collector, as aforesaid, may or can lawfully sell and convey the same; together with all and singular the tenements, hereditaments and appurtenances thereunto belong- ing, or in anywise appertaining, of the said M. M., and of all owners and claimants thereof, known and unknown, in or to the said last above-described premises, and every part and par- cel thereof, with the appurtenances, which she or they, or either of them, had or possessed on the day of said levy or assessment. To have and to hold, all and singular, the hereinbefore and last-mentioned and described premises, together with the appur- tenances thereof, unto W. J., the said party of the second part, and his heirs and assigns forever. NOTE.— In California, under the act of 1895, all delinquent property is bid in by the state, and this form of deed is not used. No. 257. — Deed — Warranty Against Grantor. This Indenture, made the seventh day of January, iQOj, be- tween C. R., of the county of Mendocino, state of California, the party of the first part, and A. H. B., of the city and county of Sacramento, state of California, the party of the second part, witnesseth. That the said party of the first part, for and in consideration of the sum of eight hundred and ninety-six dollars, gold coin of the United States of America, to her in hand paid' by the said party of the second part, the receipt whereof is herebv acknowl- edged, does by these presents, grant, bargain, sell, alien, convev, and confirm, unto the said party of the second part, and to his heirs and assigns forever, all [description]. Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertain- ing and the rents, issues, and profits thereof. To have and to hold, all and singular the said premises, to- gether with the appurtenances, unto the said party of the second part, his heirs and assigns forever; and the said partv of the first part, for herself and her heirs, executors, and administrators, does hereby covenant and agree to and with the said party of the second part, his heirs, and assigns, that she has not made, done, committed, executed or suflfered any act or acts, thing or things whatsoever, whereby, or by means whereof, the said prem- ises, or any part or parcel thereof, now are, or at any time here- 212 New Book of Forms. after shall, or may be impeached, charged, or encumbered, in any manner or way whatsoever. No. 258. — Deed — Warranty Against Grantor. This IndEnturiv, made the eighth day of April, in the year ipo^, between R. S. of the city and county of San Francisco, state of California, the party of the first part, and T. R., of the same place, the party of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of two thousand two hundred and fifty dollars, gold coin of the United States of America, to him in hand paid by the said party of the second part, the receipt whereof is hereby ac- knowledged, does, by these presents, grant, bargain, sell, con- vey, and confirm unto the party of the second part, and to his heirs and assigns forever, all that certain lot, piece, or parcel of land situate in the city and county of San Francisco, state of California, bounded and described as follows, to wit: [Descrip- tion.] Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertain- ing, and the rents, issues, and profits thereof. To have and to hold, all and singular the said premises, to- gether with the appurtenances, unto the said party of the second part, and to his heirs and assigns forever. And the said party of the first part, for himself and his heirs, executors, and admin- istrators, does hereby covenant and agree to and with the said party of the second part, his heirs, executors, administrators and assigns, that he has not made, done, committed, executed or suf- fered any act or acts, thing or things whatsoever, whereby or by means whereof the said premises, or any part or parcel thereof, now are, or at any time hereafter shall, or may, be impeached, charged, or encumbered in any manner or way whatsoever. No. 259. — Warranty Deed. This Indenture, made the fourteenth day of April, in the year of our Lord iQOj, between /. W., of Monterey, county of Monterey, state of California, the party of the first part, and G. W., of the same place, the party of the second part, witnesseth : That the said party of the first part, for and in consideration of the sum of two thousand six hundred dollars, gold coin of the United States of America, to him in hand paid, by the said party of the second part, the receipt whereof is hereby acknowledged, does by these presents grant, bargain, sell, convey and confirm unto the said party of the second part, and to his heirs and as- signs forever: [Description.] Deeds — Grants — Conveyances, 213 Tog-ether with all and sing-ular the tenements, hereditaments and appurtenances thereunto bclonc^ing-, or in any wise appertain- ing, and the rents, issues and profits thereof. To have and to hold, all and singular, the above-mentioned and described premises, together with the appurtenances, unto the said party of the second part, and to his heirs and assigns for- ever. And the said party of the first part, and his heirs, the said premises, in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against the said party of the first part, and his heirs, and against all and every ])erson and persons whomsoever, lawfully claiming or to claim the same, shall and will warrant, and by these presents forever defend. No. 260. — Warranty Deed by Attorney — Full Covenants. This Indenture, made the sez'enth day of January, ipofj, be- tween IV. B. L., of lozva Hill, county of Placer, state of Califor- nia, and W. S., of Auburn, county aforesaid, by their attorney in fact, D. D. S., the parties of the first part, and £. A. P., of Forest Hill, county aforesaid, and T. J., of Poverty Bar, county aforesaid, the parties of the second part, witnesseth: That the said parties of the first part, for and in consideration of the sum of five thousand six hundred and eight dollars, ^old coin of the United States of America, to them in hand paid by the said parties of the second part, at or before ensealing and de- livery of these presents, the receipt whereof is hereby acknowl- edged, have granted, bargained, sold, aliened, conveyed and con- firmed, and by these presents do grant, bargain, sell, alien, convey and confirm unto the said parties of the second part, and to their heirs and assigns forever. [Description.] Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertain- ing, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof. To have and to hold, all and singular, the above granted and described premises, with the appurtenances, unto the'said parties of the second part, their heirs and assigns forever. And the said parties of the first part, for their heirs, execu- tors, and administrators, do covenant, grant and aoree to and with the said parties of the second part, their heirs and assions, that the said parties of the first part, at the time of the seaTinc^ and delivery of these presents, are lawfully seised in fee simple absolute of and in all and singular the above granted and de- scribed premises, with the appurtenances, and have good ri"-ht full power, and lawful authority to grant, bargain, sell and con- vey the same, in manner aforesaid ; and that the said parties of the second part, tlieir heirs and assigns, shall and may, at all 214 New Book of Forms. times hereafter, peaceably and quietly have, hold, use, occupy, possess, and enjoy the above-granted premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molestation, eviction or disturbance of the said parties of the first part, their heirs and assigns, or of any other person or persons lawfully claiming or to claim the same ; and that the same now are free, clear, discharged, and unencumbered of and from all former and other grants, titles, charges, estates, judg- ments, taxes, assessments and encumbrances, of what nature or kind soever. And, also, that the said parties of the first part, and their heirs, and all and every person or persons whomsoever, lawfully or equitably deriving any estate, right, title, or interest, of, in or to the hereinbefore granted premises, by, from, under or in trust for them shall and will, at any time or times hereafter, upon the reasonable request, and at the proper costs and charges in the law, of the said parties of the second part, their heirs and assigns, make, do, and execute, or cause to be made, done, and executed, all and every such further and other lawful and reasonable acts, conveyances, and assurances, in the law, for the better and more effectually vesting and confirming the prem- ises, hereby granted, or so intended to be, in and to the said parties of the second part, their heirs and assigns forever, as by the said parties of the second part, their heirs, or assigns, or their counsel learned in the law, shall be reasonably advised or required; and the said parties of the first part, their heirs, the above-described premises, and every part and parcel thereof, with the appurtenances, unto the said parties of the second part, their heirs and assigns, against the said parties of the first part, and their heirs and against all and every person and persons whomsoever, lawfully claiming or to claim the same, shall and will warrant, and by these presents forever defend. No. 261. — Deed — Bargain and Sale. This Indenture, made the twenty-third day of February, 1905, between IV. S., of the state of Nevada, the party of the first part, and W. C. R., of the city and county of San Francisco, state of California, the party of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of one hundred thousand (100,000) dollars, gold coin of the United States of America, to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell and convey unto the said party of the second part, and to his heirs and assigns for- ever, all that certain lot, piece, or parcel of land situate, lying, and being in the city and county of San Francisco, state of Caii- Deeds — Grants — Conveyances. 215 fornia, and bounded and particularly described as follows, to wit: [Description.] Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertain- ing, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. To have and to hold, all and singular the above-mentioned and described premises, together with the appurtenances, unto the said party of the second part, hia heirs and assigns forever. No. 262. — Deed — Civil Code — Warranty. I, /. B., of the first part, grant to C. S., of the second part, all that real property situated in Sierra county, state of California^ bounded and described as follows: [Description.] The party of the first part covenants with the party of the sec- ond part, that the former is now seised in fee simple of the prop- erty granted; that the latter shall enjoy the same without any lawful disturbance ; that the same is free from all encumbrances ; that the party of the first part, and all persons acquiring any in- terest in the same through or for him, will, on demand, execute and deliver to the party of the second part, and at the expense of the latter, any further assurance of the same that may be rea- sonably required, and that the party of the first part will war- rant to the party of the second part all the said property against every person lawfully claiming the same. To have and to hold the above granted and described prem- ises unto said C. S., his heirs and assigns forever. No. 263.— Deed— Trust— Notice Under, of Trustee's Sale. Whereas, /. L., of the county of Kings, state of California, did execute a certain deed of trust bearing date the seventh day of March, igo2, to B. A. B., and G. T., as trustees, for the benefit and security of The G. S. and L. Society, a corporation, which deed of trust was recorded in the office of the county recorder of the county of Kings, state of California, on the twenty-sixth day of April, IQ02, in Liber 4 of Trust Deeds, at page 558. And whereas, the said B. A. B. died on the thirteenth day of Jidy, 1902, and said G. T. then became the sole surviving trustee under said deed of trust ; And whereas, default has been made by the said /. L. in the payment of the promissory notes secured by said deed of trust, and the board of directors of the said The G. S. and L. Society did on the tzventy- fourth day of January, 1005, by resolution, de- mand that said trustee, G. T., should forthwitli proceed to sell the lands in said deed of trust described ; Now, therefore, pursuant to the said resolution and in accord- ance with the tenus and under the authority of the said deed of 2i6 Ni;w Book of Forms. trust, the said G. T., as such trustee, does hereby give notice that on Thursday, the second day of March, ipo^, at the hour of ten o'clock in the forenoon of said day, at the main entrance to the Hcdl of Justice, on Kearny street, in the city and county of San Francisco, state of California, he will sell at public auction to the highest bidder for cash in gold coin of the United States, all that certain piece, parcel, tract and lot of land situate, lying and being in the county of Kings, state of California, and particularly described as follows, to wit: [Description.] HOMESTEAD. Creation of. — In California a homestead is created by a dec- laration in writing showing: i. That the person making it is the head of a family, and the name of the spouse, if the claimant is married ; or when it is made by his wife, showing that her hus- band has not made such declaration, and that she therefore makes it for their joint benefit; 2. A statement that the person making it is residing on the premises and claims them as a homestead ; 3. A description of the premises ; 4. An estimate of their actual cash value: C. C. P., sec. 1263. A husband is the head of a family when he is married, and in the following order every person who is residing on the premises with him or her, and under his or her care and maintenance: i. His or her minor child or minor grandchildren, or the minor child of his or her deceased wife or husband ; 2. A minor brother or sister, or the minor child of a deceased brother or sister; 3. A father, mother, grandfather or grandmother; 4. The father, mother, grand- father or grandmother of a deceased husband or wife; 5. An unmarried sister or any other of the relatives mentioned of legal age and who are unable to take care of or support themselves: C. C, sec. 1261. Who may Select. — The husband or other head of the fam- ily, or in case the husband has not made a selection, the wife must execute and acknowledge in the same manner as a grant of real property is acknowledged, a declaration of homestead and file the same for record: C. C, sec 1262. Value of Premises. — The constitution of the state of Cali- fornia provides for homesteads by article 17, section i. The Civil Code fixes the value: i. Head of family, not exceeding five thousand dollars ; 2. Any other person, not exceeding one thousand dollars. The declaration must state an estimate of the I HoMi^STEAD. 217 actual cash value of the premises: Ames v. Eldred, 55 Cal. 136. There are many other cases to the same point, and it appears to make no difference what form of words are used or the value placed on the premises, be it more or less than five thousand dollars, even if the word "cash" is omitted before the word **value." In King v. Gotz, 70 Cal. 236, the value was placed at seven thousand dollars: C. C, sec, 1266. Exemption of. — It is exempt from execution or forced sale except: i. To satisfy judgments obtained before. declaration was filed for record, which judgments are liens upon the premises; 2. On debts secured by liens under the mechanic's lien law and vendor's liens upon the premises; 3. On debts secured by mort- gages on the premises executed and acknowledged by husband and wife, or by an unmarried claimant ; 4. On debts secured by mortgage on the premises, executed and recorded before the declaration of homestead was filed for record: C. C, sees. 1240, 1241. No. 264. — Homestead. Know all Men by these Presents: That I do hereby de- clare that I am married. That my husband's name is /. C. F., and that I do now, at the time of making this declaration, actually reside on the premises hereinafter described. That the said premises are bounded and described as follows, to wit : Lying and being in the county of Sacramento, state of California, and bounded and described as follows, to wit: [Description.] That I do by these presents claim the premises above described, together with the dwelling-house thereon, and the appurtenances, as a homestead. That I make this declaration for the joint benefit of myself and husband, and I declare and show by this instrument that my husband has not made a declaration of homestead. That the actual cash value of said premises I estimate to be Hve thousand dollars. In witness whereof, I have hereunto set my hand and seal this third day of June, one tliousand nine hundred and five. Homesteads, Generally. — It is the home where the family perma- nently resides: Cook v. McChristian, 4 Cal. 23. That case was decided in the days of California's judicial innocence. The words "perma- nently reside" are redolent of home, Christmas trees and happiness in old family residences, not capable of transfer in the life of the fam- ily. It was a place of refuge. Since then it has been held, and is ac- cepted as sound law, that a homestead is the home were the family permanently resides until it moves to some other place: Gaylord v. Place, 99 Cal. 472, 33 Pac. 484. The homestead law is a remedial measure and is liberally construed: Heathraan v. Holmes, 94 Cal. 201. 29 Pac. 404. It is intended to protect the home of the family against creditors and 21 8 New Book of Forms. against disposition or encumbrance bv oiif of the spouses: Tromans v. Mohlman, 92 Cal. 1, 27 Pac. 1094, 28 Pac. 579. Section 126B of the Civil Code is mandatory, and compliance with it is essential to the validity of the homestead: Ashley v. Olmstead, 54 Cal. 616; Estate of Gallagher, 134 Cal. 96, 66 Pac. 70. The right exists only upon compliance with the statute: Tappendorff v. Moranda, 134 Cal. 419, 66 Pac. 491. The statute IS to be liberally construed, and if the essence of the statutory require- ments is stated in the declaration, it is sufficient. If the premises are the separate property of the wife, her acknowledgment of the declaration establishes the fact that she joins in it; and the use of the word "we" Involves a statement that the husband and wife joined in it: Simonson v. Burr, 121 CaL 582, 54 Pac. 87; Quackenbush v. Eeed, 102 CaL 493, 37 Pac. 755. The declaration by a wife must contain the statement that her hus- band has not made one, and that she therefore makes the declaration for their joint benefit: Cunha v. Hughes, 122 Cal. Ill, 68 Am. St. Eep. 27, 54 Pac. 535. When the validity of the homestead is attacked, the truth of the recitals in it must be proven by evidence outside of the statement of facts in the declaration: Apprate v. Paure, 121 Cal. 466, 53 Pac. 917. There can be no homestead without compliance with the homestead law: Bank of Woodlands v. Oberhaus, 125 CaL 320, 57 Pac 1070. It is not necessary to state that the applicant is married; the state- ment that he is the head of a family is the ultimate fact to be stated. Nor is it necessary to state who are the members of his family: Secur- ity Loan etc. Co. v. Kauffman, 108 Cal. 214, 41 Pac. 467. A declaration need not state the facts showing (establishing the fact) the declarant to be the head of a family. A statement in it that he is the head is suflS- cient: Jones v. Waddy, 66 Cal. 457, 6 Pac. 92. A declaration is invalid that does not state that the claimant is "the head of a family," and is only signed by the initial letters of the Christian names of the claimant, s. it cannot be ascertained from the signature that the claimant is the husband: Beid v. Englehart-Davidson Mer. Co., 126 Cal. 527, 77 Am. St. Eep. 206, 58 Pac. 1063. Only One Homestead at a Tirr?e. — A person cannot have two home- steads; if the second is acquired while the first exists, the second is void: Waggle V. Worthy, 74 Cal. 266, 5 Am. St. Eep. 440, 15 Pac. 831. It has been held that if a widow to whom a probate court sets apart a home- stead marries, and her husband dies, a probate court may set apart to her a second homestead: Higgins v. Higgins, 46 Cal. 259; but if a home- stead has been set apart to a spouse out of the common property, she is not entitled to a second homestead out of her deceased husband's separate estate: Estate of Aekerman, 80 Cal. 208, 13 Am. St. Eep. 116, 22 Pac. 141. Eesidence on Premises. — Both actual residence on the premises and a declaration in form sufficient to comply with the statute are necessary, and if the declaration is not sufficient, the defect cannot be supplied by evidence: Boreham v. Byrne, 83 Cal. 23, 23 Pac. 212. The physical fact of occupancy of the premises and the intention with which they were occupied are elements to be considered in determining the fact of actual residence: Tromans v. Mahlman, 111 Cal. 646, 4 Pac. 327. What Property may be Taken as. — The homestead consists of the dwelling-house in which the claimant resides and the land on which the same is situated. If the claimant be married it may be selected from the community property, or the separate property of the husband, or, with the consent of the wife, from her separate property. A wife con- sents to the homestead selection when she joins in the declaration of HOMICSTEAD. 21«J homestead: C. C. P., sees. 1237-1239. The description of the prpmise3 claimed in a declaration must be as particulfxr as is required in a grant: Schnler v. Broughton, 76 Cal. 524, 18 Pac. 436. The principal use to which the property is put is the test in determining whether it was subject to homestead: Matter of Allen, 78 Cal. 296, 20 Pac. 679. Quantity is unlimited, but the value governs: Gregg v. Bostwick, 33 Cal. 220, 91 Am. Dec. G37; cited, 6 Mont. 456, 13 Pac. 118. 13 Nev. 68. It need not be in compact form. It may be intersected by highways. A homestead represents the family dwelling place, with necessary out- houses: Estate of Delaney, 37 Cal. 176; cited, 62 Cal. 134, 49 Am. Rep. 83, 71 Cal. 304, 12 Pac. 230, 78 Cal. 474, 21 Pac. 116. A homestead where the dwelling stands, and also adjoining land used in connection with it as a garden, and for family water supply, was upheld in Ardent v. Mace, 76 Cal. 315, 9 Am. St. Rep. 207, 18 Pac. 376. See, also, Englebrecht v. Shade, 47 Cal. 627. A farm of several fields may be a homestead: Ken- nedy V. Gloster, 98 Cal. 143, 32 Pac. 941; Gregg v. Bostwick, 33 Cal. 220, 91 Am. Dec. 637. Business Property as. — Where the property is used as a public hotel, and the family reside there, it is not a homestead within the meaning of the law: Laughlin v. Wright, 63 Cal. 113. But a tract of one hun- dred and sixty acres and a building on it was intended as a residence for the family, and the nature and extent of the hotel-keeping in the house did not interfere with the general character of the premises, and because the entire property was not worth over two thousand dollars, it was upheld as a homestead: Ackley v. Chamberlain, 16 Cal. 181, 76 Am. Dec. 516; and this case was cited and approved in 63 Cal. 117; 69 Cal. 199, 10 Pac. 406; 71 Cal. 302, 12 Pac. 230; 75 Cal. 424, 7 Am. St. Bep. 180, 17 Pac. 539, 78 Cal. 295, 20 Pac. 679, 94 Cal. 294, 29 Pac. 404. Pasturing cattle on homestead premises, and selling hay raised on the land, when there was more than the family's cattle could consume, did not invalidate homestead: Kennedy v. Gloster. 98 Cal. 143, 32 Pae. 941. Miner's Cabin and Claim as. — Under section 690 of the California Code of Civil Procedure, the cabin and dwelling of a miner and a min- ing claim actually worked by him, not exceeding in value one thousand dollars, is exempt from execution. In construing said section it was held that that exemption does not preclude a miner from selecting the cabin and dwelling and claim as a homestead under the general home- stead law. It was also said that it is not necessary that a homestead should be a permanent home. The fact that the homestead land was be- ing washed away to extract the gold it contained did not matter: Gay- lord V. Place, 98 Cal. 472, 33 Pac. 482. As to the claimant's title to the premises claimed, whatever claim or title the claimant has is pro tected from forced sale: Spencer v. Geissman, 37 Cal. 96, 99 Am. Dec. S48; Alexander v. Jackson, 92 Cal. 514, 27 Am. St. Rep. 158, 28 Pae. 593. Land Held in Common, etc. — Commencing vnth Elias v. Virdugo, 27 Cal. 418, and ending with Rosenthal v. Merced Bank, 110 Cal. 198, 42 Pac. 640, all the cases hold that land held in "cotenancy," "joint ten- ancy," "tenancy in common," cannot be claimed as a homestead- No. 265. — Declaration of Homestead — Husband. Know all Men by thf^E Presents: That I do hereby de- clare that I am married and the head of a family ; that my wife's name is M. J. F., and that I do now, at the time of making this declaration, actually reside on the premises hereinafter described. That my family consists of a wife and three children. Tliat tlie 220 New Book of Forms. premises on which I reside are bounded and described as fol- lows, to wit : Lying and being in the county of Sacramento, state of California, and bounded and described as follows, to wit: [De- scription.] That I do by these presents claim the premises above de- scribed, together with the dwelling-house thereon, and the ap- purtenances, as a homestead. That the actual cash value of said premises I estimate to be five thousand dollars. In witness whereof, I have hereunto set my hand and seal this third day of June, one tliousand nine hundred and five. NOTE.— California, C. C, sees. 1237-1269. Alaska: Must not exceed $2,500 in value, nor exceed one hundred and sixty acres of land. A declaration of not necessary. If in lots or blocks of a town or city, not over one-fourth of an acre. Declaration of is unnecessary. It is a matter of exemption from execution: Codes, pt. 5, c. 31, sec. '372. Arizona: Not to exceed $2..500 in value, without reference to quantity of land. A declaration of is not necessary. The residence may be on land not occupied by a family. Probate homesteads are allowed: C. C, pars. 1732-1736, 2714-2724. Colorado: Every householder who is the head of a family is entitled to a homestead, to the extent of $2,000. It is easy there. On the margin 01 the record title to the land the claimant must wi-ite the word ' ' home- Btead, " and sign the marginal entry, and the clerk and county recorder attests the same, with the date. It is only exempt while occupied. It may consist of a house and lot or lots in a town or city or a farm, so that the value does not exceed $2,000. The excess may be reached by appraisement and execution. It descends to the family: Mill's Stats., Bees. 2132-2136. Idaho, C. C, sees. 2470-2501, the same as in California. Montana: The same as in California, except one hundred and sixty acres of land is the limit when used for agricultural purposes and the dwelling-house and appurtenances when not included in any town plat, eity or village. If in a city, town or village, one-fourth of an acre is the limit, but in no case must it exceed in value $2,500; C. C, sees. 1670-1703. Nevada: Substantially the same as in California; so that the forms in this book are applicalole with a few changes. The value is $5,000. A declaration and recording are necessary: Comp. Laws, sees. 550-558. New Mexico: The same as in Arizona as to exemptions to the extent of $500. Declaration not necessary: Comp. Laws, sees. 1747-1752. It is exempt from taxation to the extent of $200: Laws 1901, p. 186. North Dakota: The same substantially as in California, except if within a town plat, it must not exceed two acres, and if not, then not to exceed one hundred and sixty acres: C. C, sees. 3605-3638. Oregon: It is a matter of exemption from execution to the extent of $1,500. It must not extend beyond one hundred and sixty acres in the country. If located in a city or town, then it shall not exceed one block, nor shall a homestead be reduced to less than twenty acres nor one lot, regardless of value: Codes and Statutes, sees. 221-228. South Dakota: It must embrace the house used as a home. It may contain one or more tracts of land with the buildings. If in a town plat, not more than one acre. If not, then it must not exceed one hun- dred and sixty acres. If upon mineral lands acquired from the United States, then not over one acre within or without a town plat. A shop, HOMESTE.VD. 221 etoTo or other bnilding may be. It must be marked ofT by visible monu- ments unless it enihraees the whole of a subdivision. When marked on a plat the direction and distance of the starting point from some corner of the dwelling-house shall be stated. The description, certified and ac- knowledged by the owner, shall be recorded by the register of deeds in a homestead book. The value not to exceed $5,000: C. C, sees. 3215- 3236. Upon the death of the head of the family it is distributed to the family, and any excess in value may be taken by creditors by putting in mjtion proceedings similar to the appraisements, etc^ in use in Cali- fornia. Utah: The lands and appurtenances may be in one or more localities. The value not to exceed $1,500 for the head of the family and $500 for his wife, and $250 for each other mcml ^r of his family. In other re- Bprets the law is similar to that of California: Eev. Stats., sees. 1147- iio;. Washington: The value not to exceed $2,000. In other respects it i. in all its main features a copy of the California law: Ballinger's Codes, sees. 5214-5247. Wyoming: Every householder being the head of a family is entitled to exemptions, not to exceed in value $1,500. It is only exempt when occupied by the person entitled to it or his family. It may consist of a house and lot, or lots in a town or city, and if a farm consisting of not exceeding one hundred and sixty acres, in value not exceeding $1,500. Neither declaration nor recording are necessary: Rev. Stats., sees. 3901- 3911. It is, on the whole, a matter of exemption from execution, the same claims to be made when attached or levied upon. It is cla.ssified iv. the statutes, not under the head " Ilomestead, " but under "Exemp- tions from Execution." No. 266. — Declaration of Homestead by Wife on Her Sep- arate Property. [The same as No. 265 down to and including the words: "I estimate to be five thousand dollars," and continue as follows:] "I declare that the land and premises above described are my separate property, and I consent to its becoming a homestead for myself and husband." No. 267. — Declaration of Homestead by Husband — Wife's Separate Property. [The same as No. 265 down to and including the words, "I estimate to be five thousand dollars" ; and I, M. J. P., declare that the premises are my separate property and I consent to their declaration of homestead by my husband, J. C. F.\ No. 268. — Declaration by Urunarried Person the Head of a Family. Know all Men by these Presents: That I do hereby cer- tify and declare that I am not married, and that I do now, at the time of making this declaration, actually reside with my family on the land and premises hereinafter described. That my fam- Vy consists of my father and mother, now under my care and maintenance. That the land and premises on which I reside are 222 New Book of Forms. bounded and described as follows, to wit : Lying and being in the city and county of San Francisco, state of California, and com- mencing: [Description.] That it is my intention to use and claim the said lot of land and premises above described, together with the dwelling-house thereon, and its appurtenances, as a homestead, and I do hereby select and claim the same as a homestead. That the actual cash value of said property I estimate to be four thousand dollars. Unmarried Person. — A person other than the head of a family mnst execute and acknowledge a declaration of homestead in the same man- ner as a grant of real property is acknowledged. It must contain everything required in the second, third and fourth subdivisions of section 1263, Civil Code. See "Declaration of by Husband or Wife." Acknowledgment must be made in the same manner and form necessary to the conveyance of land: C. C, sees. 1266-1269; Clements v. Stanton, 47 Cal. 60; Beck v. Soward, 76 Cal. 527, 18 Pae, 650; Kennedy v. Gloster, 98 Cal. 143, 32 Pac. 941. No. 269. — By Unmarried Person the Head of a Family. [The same as in No. 268, down to and including the words, "hereafter described"; then continue:] "That my family consists of," etc. [as the case may be, either: i. His or her minor child, or minor grandchild, or the minor child of his or her deceased wife or husband; 2. A minor brother or sister, or the minor child of a deceased brother or sister; 5. A father, mother, grand- father or grandmother ; 4. The father, mother, grandfather, or grandmother of a deceased husband or wife; 5. An unmarried sister, or any other of the relatives mentioned in this section, who have attained the age of majority, and are unable to take care of or support themselves. Conclude as in No. 268.] No. 270. — Declaration by Person not Head of Family. Know all Men by these Presents: That I, G. P., do now, at the time of making this declaration, actually reside on the premises hereinafter described. That said premises are bounded and described as follows, to wit [description]. I claim the said premises, with the dwelling-house thereon, and the appurtenances, as a homestead. That the actual cash value of said premises I estimate at one thousand dollars. In witness whereof, etc. No. 271. — Homestead Abandoned. Know all Men by these Presents : That we, /. C. F. and M. /. F., husband and wife, do hereby abandon, release, and dis- charge from any and all claim by us, as a homestead, the lot of HOMKSTEAD. 223 land and premises, situate, lying and being in the county of Sac- ramento, state of California, bounded and described as follows, to wit: [Description.] Together with the tenements and appurtenances thereunto be- longing. In witness whereof, zve have hereunto set o«r hands and seals this third day of June, one thousand nine hundred and five. Termination of. — It may be encumbered only by conveyance executed and acknowledged by both husband and wife: C. C, sec. 1242. It may be abandoned, first, only by a declaration of abandonment, or a grant thereof executed and acknowledged by the husband and wife, if the claimant is married; second, by the claimant if unmarried: Cal. C. C, Bee 1245. No. 272. — Application for Appraisers to Appraise the Value of Homestead. [Title of Q)urt and Cause.] To the Honorable, the Superior Court of the City and County of San Francisco, State of California: The petition of The C. S. and L. Society, a corporation, the plaintiff in the above-entitled action, states that the facts upon which this petition is founded are as follows : That in said action on the third day of June, 1905, plaintiff re- covered judgment against this defendant, /. C. P. and M. J. F., his zvife, for the sum of $4,000, upon an unsecured promissory note executed by said defendants to petitioners. That execution under said judgment has been levied by the sheriff of said city and county upon the premises and dwelling-house thereon, de- scribed as follows, to wit: [Description.] That prior to said entry of said judgment, defendants, in form as is by law required, declared and caused to be recorded in the office of the recorder of said city and county a homestead upon said premises, and estimated the value thereof not to exceed $5,000. That immediately after the levy of said execution said defend- ants notified said sheriff that said premises were their, defend- ants', homestead, and said sheriff refused to proceed further with said execution. Petition states, upon information and belief, that said premises are of the value of $12,000, and he prays the court to appoint three disinterested persons, residents of said ciVv and county, to appraise the value of said homestead ; and for such other relief as petitioner may be entitled to when said ap- praisement is made and reported to the court. NOTE.— California, C. C. P., sec. 1245. 224 New Book of Forms, No. 273. — Notice of Time and Place of Hearing Petition. [Title of Court and Cause.] To J. C. F. and M. J. F., His Wife: Please take notice that the petition of The C. S. and L. Society for an order to appoint appraisers to appraise the value of the premises described in the petition served on you at the time this notice is served has been set for hearing before said court at the courtroom thereof, in the said city and county, at ten o'clock A. M., on Friday, August 20, ipo^. Dated and signed. No. 274. — Order Appointing Appraisers. [Title of Court and Cause.] At the hearing of the above-entitled matter, and upon proof of the service of a copy of the petition filed herein praying for the appointment of appraisers to appraise the property described in said petition, and also proof of the service of notice of the time and place of hearing said petition upon the claimants of the homestead described in it, in the manner prescribed by law, it is ordered that /. S., R. D. and F. F. B., three disinterested resi- dents of the city and county of San Francisco be, and they are hereby, appointed to appraise the value of said property and report in writing to this court their appraisement No. 275. — Oath of Appraisers. [Title of Court and Cause.] You and each of you do solemnly swear that you will faith- fully perform your duties as appraisers in appraising the value of the property described in the petition of The C. S. and L. Society in the above-entitled matter. So help you God. No. 276. — Report of Appraisers — No Division of Land. [Title of Court and Cause.] To the Honorable, F. H. K., Judge of said Superior Court : The undersigned, appraisers appointed by you in the above- entitled proceedings, to appraise the value of that land and im- provements situated in said city and county, bounded and de- scribed as follows, to wit: [Description,] Beg leave to report that immediately after their appointment they each were sworn in manner and form as by law required, to faithfully perform Homestead. 225 their duties as said appraisers. That they viewed said premises immediately after being sworn and have appraisesd the value thereof. That we appraised the value of the land and the im- provements thereon at $12,000 in gold coin of the United States. We value the land without the improvements at $10,000, and the improvements while remaining on the land at $2,000, and report that the improvements are not sufficiently strong to be removed from the land, and their only value to the land is for residence purposes, a Chinese washhouse, at a rental of about $2^ a month. The lot above described, having only 50 feet frontage on a street by I2f, feet in depth, cannot be divided without material injury to the value of the premises. No. 277. — Report of Appraisers — Division of Land, [Title of Court and Cause.] [The same as in No. 276 down to and including the words and figures, "About $2^ a month":] That the lot above described has a frontage of 160 feet on the %vest side of Maple street in said city and county by a depth of 100 feet on the north side of Jackson. The house above described fronts on Maple street 80 feet northerly of the northwest comer of Jackson and Maple street, with an unobstructed view of a large part of the San Francisco bay, Alcatras, Belvedere and the camp, tvoods and buildings on the Presidio. We appraise the value of the land and improvements last above described at $j,ooo. We appraise the value of the land on the northeast comer of Maple and Jack- son street, 80 feet on Maple by 100 feet on Jackson, at $/,ooo, all said values in gold coin of the United States ; and we report that the said land can be divided as above described without material, or any, injury. No. 278. — Order Directing Homestead be Sold, and Surplus Above Five Thousand Dollars Applied on Execution, [Title of Court and Cause.] It appearing from the report of the appraisers herein that the land claimed as a homestead exceeds in value the sum of $5,000 homestead exemption, and that it cannot be divided, it is hereby ordered that the sheriff of the said city and county sell, under execution, in the manner directed by law the premises described in said report ; that is to say : No bid must be received unless it exceeds $5,000. If the sale is made, $5,000* must be paid to /. C. F. and M. J. F., his ztnfe, the homestead claimants, and the balance applied to the satisfaction of the execution. •The $5,000 represents the homestead and is, during the six following months, exempt from exeeution, and it ia also exempt from the voluntary New ■Porms — 15 226 New Book of Forms. No. 279. — Order Directing Division of Homestead Land. [Title of Court and Cause.] On reading and filing the report and appraisement of /. S., R. D., and F. B., the appraisers appointed to appraise the value of that land situated in the city and county of San Francisco, state of California, and bounded and described as follows, to wit: [Description.] It is ordered that said appraisers set off to /. C. F. and M. J. F., as a homestead a tract of land with the improvements there- on, with the boundaries of the land above described commencing on the west line of Maple street, 80 feet from the northeast corner of Maple and Jackson; running northerly 80 feet, with a uni- form depth of 100 feet, including the residence ; and that they make a map of the whole tract showing the part set ofiF as a homestead as aforesaid and the part separated from the home- stead, and report the same to this court No. 280. — Order Setting .Apart Homestead and Permitting Execution Against Surplus Land. [Title of Court and Cause.] J. S., R. D. and F. F. B., appraisers in the above-entitled mat- ter, having under the order of this court set apart to /. C. F. and M. J. F., his wife, all that land described as follows, to wit [de- scription], as a homestead, it is ordered that the said premises, including the residence thereon, are hereby set apart to said /. C. F., and M. J. F., his wife, as a homestead, and it is further ordered that the remainder of said land described in the petition of The C. S. and L. Society filed in this matter is subject to execution, and the said C. S. and L. Society may enforce its execution against said remainder described as follows, to wit: [Descrip- tion.] dis'position of the husband during the same period. It seems to follow that the wife is entitled to its possession and that it is the sheriff's duty to delivei the money to the wife, but not to deliver it to her prior to the expiration of six months unless a declaration of abandonment of the homestead is executed and recorded. Even if the husband consents to the delivery to the wife, it would be prudent to demand that an abandon- ment of the homestead be executed and recorded; and if there is a dis- pute about the custody of the money, it is always advisable to pay it into court. It is worth remembering that section 1257, Civil Code, does not protect the proceeds of the homestead from the wife's disposal during the six months referred to: Cal. C. C, sec. 1257. Homestead. 227 No. 281. — Order Fixing Compensation of Appraisers. [Title of Court and Cause.] It appearing^ to the court that /. S., R. D. and F. F. B., ap- praisers in the above-entitled matter, have each been actually en- gfae^ed three days in performing their duties as appraisers, it is ordered that their compensation is fixed at $1^ each, making a total of $43. No. 282. — Application of Husband of Insane Wife to Sell Homestead. [Title of Court and Cause.] To the Honorable the Superior Court of the City and County of San Francisco, State of California: Your petitioner respectfully states: That his name is A. B., and his age 60 years. That he is married and his wife is fjo years of age, and her name is M. A. B. That since his marriage to her she became hopelessly insane and was, on the ^d day of June, 1905, in manner and form as is by law provided, declared to be an insane person, and was in manner and form as is bv law required committed to the said state asylum for tho insnne situated at Napa, in said state, and she is now insane and is con- fined in said asylum in a ward set aside for incurable insane per- sons. That since said marriage one child, and no more, has been born to petitioner and his said wife, and it is 6 years and 5 months old. That his said wife has no male or other relative in said state. That since said marriage and prior to his wife's insanitv. peti- tioner and his wife declared upon their common property a home- stead upon all that land and their residence thereon situated, in ij the city and county of San Francisco, state of California, and bounded and described as follows, to wit: [Description.] The value of said homestead was stated in said petition to be and the same is of the value of $1,000. That after his marriage he became a teamster; he secured steady employment at a good salary nith an owner of freight teams in said city and county; he was satisfied ivith his employer and employment, and zvas sarin 'm€nt of any portion of the rent when due, and for j days thereafter, or in any of the covenants herein contained, said lessor, agent or attorney mav re- enter and take possession of said premises, remove all persons therefrom, and at his option terminate this lease. 236 New Book of Forms. No. 305. — Lease. This Indenture, made the jrf day of June, ipo^, between A. B., the party of the first part, and C. D., the party of the sec- ond part, witnesseth : That the said party of the first part does, by these presents, demise and lease unto the said party of the second part [description], with the appurtenances for the term of one year from the sd day of June, ipo^, at the rent or sum of $1,200, payable in gold coin of the United States of America, in 12 equal payments of $100 each, on the ist day of each and every month during said term in advance. And it is hereby agreed, that if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to re-enter the said premises and to remove all persons there- from. And the said party of the second part does hereby covenant, promise and agree to pay the said party of the first part, the said rent in the manner herein specified. And that at the ex- piration of said term, the said party of the second part will quit and surrender the said premises in as good state and condition as reasonable use and wear thereof will permit (damages by the elements excepted). And the said party of the first part does hereby covenant, promise and agree that the said party of the second part, paying the said rent, and performing the covenants aforesaid, shall and may peaceably and quietly have, hold and enjoy the said premises for the term aforesaid. No. 306. — Lease. This is to certify that I, A. B., have let unto C. D. the prem- ises known as No. 2406 Mission street, San Francisco, California, for six months from the first day of June, ipo§, at the rent of fortx dollars a month, payable on the Urst day of each month in advance. Rent for the month of June, 1904, has been paid in advance. No. 307. — Lease — Not to Underlet. This Indenture, made the twenty-eighth day of May, igo^, witnesseth : That I, S. B., of the city and county of San Francisco, state of California, lessor, do hereby lease, demise and let unto /. /., of said city and county, lessee: [Description.] To have and to hold, for the term of two years, to wit: from the twenty-eighth day of May, i<^o6, to the tzventy- eighth day of May, IQ08, yielding and paying therefor the rent of tzuenty-four hundred dollars, gold coin of the United States of America; and Lease. 237 the said lessee promises to pay the said rent in such gold coin, and as follows, to wit: the sum of one hundred dollars per month, monthly in advance, on the tzventy-eighth day of each and every month during said term; and to quit and deliver up the premises to the lessor or his agent or attorney, peaceably and quietly, at the end of the term, in as good order and condition (reasonable use and wear thereof and damages by the elements excepted), as the same are now or may be put into, and to pay the rent as above stated during the term, also the rent as above stated for such further time as the lessee may hold the same, and not make or suffer any waste thereof, nor lease, nor underlet, nor permit any other person or persons to occupy or improve the same, or suffer to be made, any alteration therein, but with the approba- tion of the lessor thereto, in writing, having been first obtained, and that the lessor may enter to view and make improvements, and to expel the lessee if he shall fail to pay the rent as aforesaid, or make or suffer any strip or waste thereof. And should default be made in the payment of any portion of said rent when due, and for three days thereafter, the said lessor, his agent or attorney, may re-enter and take possession, and at his option terminate this lease. No. 308. — Lease — Holding Over. This Indenture, made and entered into at Sacramento, state of California, this 6th day of January, igo§, between /. D., of the county of Sacramento, state of California, the party of the first part, and D. J., of the same place, the party of the second part, witnesseth : That the said party of the first part has letten, and by these presents doth grant, demise, and let, unto the said party of the second part, and the said party of the second part has hired and taken, and by these presents doth hire and take of and from the said party of the first part [description], with the appurtenances, one year from the fifteenth day of January, ipo6, at the yearly rent or sum of o)ie thousand ttvo hundred (1,200) dollars, pay- able montJdy in advance, in equal monthly payments of one hun- dred (100) dollars, in gold coin of the United States. And it is agreed, that if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to re- enter the said premises, and to remove all persons therefrom. And the said party of the second part does hereby covenant to pay to the said party of the first part the said rent herein re- served in the maimer herein specified. And rK)t to make or suffer any alteration to be made therein, without the written consent of the said party of the first part ; and not to assign this lease 238 New Book of Forms, without the written consent of the said party of the first part. And that at the expiration of the said term, or any sooner deter- mination of this lease, the said party of the second part will quit and surrender the premises hereby demised, in as good order and condition as reasonable use and wear thereof will permit, dam- ages by the elements excepted. And if the party of the second part shall hold over the said term with the consent, expressed or implied, of the party of the first part, such holding shall be con- strued to be a tenancy only from month to month. No. 309. — Crop Lease — Farming Lease on Shares. This Indenture, made the thirteenth day of May, 1905, be- tween F. M. P., of the county of San Mateo, state of California, the party of the first part, and W. H., of said city and county, the party of the second part, witnesseth : That the said party of the first part for and in consideration of the rents, covenants, and agreements hereinafter mentioned, reserved and contained on the part and behalf of the said party of the second part, his executors, administrators, and assigns, to be paid, kept, and performed, has granted, demised, and to farm let, and by these presents does grant, demise, and to farm let, unto the said party of the second part, his executors, adminis- trators, and assigns, all [description]. To have and to hold the said demised premises, unto the party of the second part, his heirs, executors and administrators, for his and their sole and proper use and benefit, for and during the term aforesaid, together with all the tenements and hereditaments thereunto appertaining, and all the stock and farming utensils, of every name and nature, now being in or upon the same, be- longing to the said party of the first part. In consideration whereof, the said party of the second part hereby covenants and agrees to and with the party of the first part, that he will occupy, till and in all respects cultivate the premises above mentioned, during the term aforesaid, in a farm- erlike manner, and according to the usual course of farming prac- ticed in the neighborhood; that he will not commit any waste or damage, or suffer any to be done ; that he will, at his own cost and expense, keep the fences and buildings on the said premises in good repair, reasonable wear thereof and damages by the ele- ments excepted ; and that he will deliver to the said party of the first part, his heirs, executors, or administrators, or to his or their order, one equal third of all the proceeds and crops produced on the said farm and premises aforesaid, of every name, kind and description, to be divided on the said premises, in stack and sack, according to the usual course and custom of making such divi- sions in the neighborhood, and in a seasonable time after such crop shall have been gathered and harvested. Lease:. 239 It is further understood and agreed between the aforesaid par- ties, that the party of the second part shall find all seed or seeds necessary to be sown on said premises, and said second party pay all taxes and assessments upon the same ; that the party of the second part is to do, or cause to be done, all necessary work and labor in and about the cultivation of the said premises ; that he is to have full permission to inclose, pasture, or till and cultivate, the said premises, so far as the same may be done without injury to the reversion, and to ait all necessary timber for firewood, farming purposes, and repairing fences ; and that he is to give up and yield peaceable possession of the said premises at the expiration of said term. Said first party shall furnish on said premises at the proper time, sacks sufficient to hold all the grain coming to said first party. No. 310. — Lease of a House — Ironclad. This Indenture, made and agreed on this jd day of May, J 908, between A. B. yf Dutch Flat, Esquire, of the one part, and C. D. of Dog Town, gentleman, of the other part, witnesseth, that for and in consideration of the rents, covenants, provisos, and agreements hereinafter reserved and contained, and which on the part and behalf of the said C. D., his executors, administra- tors, and assigns, are to be paid, done, and performed, he, the said A. B., hath demised, leased, set, and to farm letten, and by these presents doth demise, etc., unto the said C. D., his execu- tors, administrators, and assigns, all that tenement, situate in S. (known by the name of "The Palace"), now or lately in the tenure or occupation of £. F., together with all shops^ cellars, easements, passages, ways, profits, commodities, and appurte- nances whatsoever, to the said tenement belonging or in any wise appertaining. To have and to hold the said tenement, and all and singular the premises, hereby demised, with the appur- tenances, unto the said C. D., his executors, administrators, and assigns, from the day of the date hereof, for and during the full term of ten years next ensuing, and fully to be complete and ended, yielding and paying therefor yearly, on every first dav of May, during the said term, unto the said A. B., his heirs or assigns, the yearly rent of $^,000. No. 311. — Lease — Ironclad Covenant — Landlord may Re- enter, When. {Proviso ghnng lessor pozvcr to enter on nonpa\mcnt, or assign- ment zvithoiit license.'^ Provided always, nevertheless, that if it shall happen that the said yearly rents hereby reserved, or either of them, shall be be- hind and unpaid, by the space of twenty days next after either of 240 New Book of Forms. the said days of payment, or if the said C. D. his executors or ad- ministrators, shall assign over, or otherwise depart with this in- denture, or the premises hereby leased, or any part thereof, to any person or persons whatsover, without the consent of the said A. B., his heirs or assigns, first had and obtained, in writing under his or their hands, for that purpose, then, and in either of the said cases, it shall and may be lawful to and for the said A. B., his heirs or assigns, into the said premises hereby leased, or any part thereof in the name of the whole, to re-enter, and the same to have again, retain, repossess and enjoy, as his and their first and former estate or estates, anything herein contained to the contrary thereof, in any wise notwithstanding. No. 312. — Lease — Ironclad Covenant to Pay Rent, And the said C. D. doth hereby for himself, his heirs, exectt- tors, administrators and assigns, covenant, promise and agree, to and with the said A. B., his heirs and assigns, in manner follow- ing, that is to say, that he, the said C. D., his executors, adminis- trators or assigns, shall and will well and truly pay, or cause to be paid, unto the said A. B., his heirs and assigns, the said yearly rent of $^,000, in the manner hereinbefore limited and appointed, according to the reservation thereof, and the true intent and meaning of these presents [except the premises, or some part thereof, shall happen to he burned dozvn, blown up, or damniHed, by reason of fire or tempest, or unavoidable accident].* No. 313. — Lease — Ironclad Covenant to Repair. Provided, also, nevertheless, that C. D. will at his proper costs and charges, from time to time, and at all times during said term, well and sufficiently repair, uphold, support, sustain, main- tain, pave, purge, scour, cleanse, glaze, empty, amend and keep said premises, with the appurtenances, hereinbefore let or de- mised, and every part and parcel thereof, in, by, and with all, and all manner of, needful and necessary reparations, supporting, paving, purging, scouring, cleansing, glazing, emptying, and amendments whatsoever, and that when, where, and as often as need or occasion shall be and require (the casualty of fire, which may consume, burn down, or burn up and destroy, the said prem- ises or any part thereof only excepted). No. 314. — Lease — Ironclad Covenant that Lessor may Enter. And further, that it shall be lawful to and for the said A. B., his executors, etc, or any of them, with worlonen or others, or *If this clanse is omitted, the lessee will be ohTg'ed to pay rent dur- ing the term although the premises are burned down. Leasb. 241 without, twice in every year, during the continuance of this lease, at seasonable times in the daytime, to enter, come in, and upon the said premises, or any part thereof, and view, search and see the state and condition of the reparations of the same, and of all defects, defaults and want of repairs, then and there found, to lease or give notice or warning in writing, at and upon said premises, to and for said C. D., for the repairing and amending the same within the space of one month then next following, in which said space of time, etc., after every or any such notice or warning, he, the said C. D., for himself, his executors, etc., doth hereby covenant, etc., to and with the said A. B., his executors, etc., well and sufficiently to repair and amend the defects and want of reparation so to be found as aforesaid. No. 315. — Lease — Ironclad Covenant for Quiet Enjoyment, And the said A. B., for himself, his heirs, executors, adminis- trators and assigns, doth covenant, promise, and agree, to and with the said C. D., his heirs, executors, administrators and as- signs, that is, the said C. D., his, etc., paying the said rent above hereby reserved, and observing, performing and keeping all and singular the covenants, clauses, articles, and agreements herein contained, on his or their part to be observed, fulfilled and kept, according to the true intent and meaning of these presents, shall and may lawfully, peacefully, and quietly have, hold, use, ocaipy, possess and enjoy said premises, etc., hereby leased with the ap- purtenances, and every part and parcel thereof, for and during all said term of twenty years, hereby granted, without any let, suit, hindrance, eviction, ejection, molestation, or interruption whatsoever, of or by the said A. B., or his heirs, etc., or of or by any other person or persons whatsover, lawfully claiming or to claim by, from, or under them, or any or either of them. No. 316. — Lease — Ironclad Covenant that Lessee may Quit, It is hereby agreed, by and between all the parties to these presents, that in case the said C. D., his heirs, executors or ad- ministrators, shall be minded or desirous to quit and lease said leased premises at the expiration of the first five years of the first ten years of said term of twelve years hereby granted, and shall give notice in writing, of such his or their minds or intentions, upon the said A. B. or his heirs, etc., six montJis before the end and expiration of said first five years of said term of tzvelve years, then and at the end of said first five years of said term of tzcelve years hereby granted, this present indenture of lease, and the term hereby granted, shall cease, determi.ie, and be utterly void. New Forms — 16 242 Nsw Book oif Forms. anything herein contained to the contrary thereof in any wise notwithstanding. No. 317. — Lease — Ironclad Covenant to Deliver Possession. And the said premises being so well and sufficiently repaired, upheld, etc. [as in No. 313] at the end of the term, or sooner determination of this present lease unto the said A. B., his heirs or assigns, shall and will, peacefully and quietly, leave and yield up, except as hereinbefore excepted. No. 318. — Lease — Covenant Determining Lease at Option of Lessor. Provided, always, nevertheless, that if said A. B., or his as- signs, shall at any time during said term tender to said C. D., or his assigns, one dollar with an intent to determine this lease, then this lease shall wholly cease and determine from the time of such tender, in like manner, to all intents and purposes whatever, as if said term of three years were fully complete and ended. Pro- vided said C. D. shall have thirty days' time after said tender to remove from said premises. No. 319. — Lease — Covenant Determining Same. Provided always, nevertheless, that if the said C. D. or his as- signs shall at any time during said term tender to A. B., lessor, one year's rent of said premises, with intent to determine this lease, then it shall cease and determine from the time of said tender. No. 320. — Lease — Covenant to Purchase Premises. Provided always, nevertheless, that if said C. D., or his assigns, at any time during said term, or within 50 days after the expira- tion of said lease, shall be minded to purchase the leased prem- ises for the sum of $S5,ooo in gold coin of the United States, and shall tender said amount to said A. B., together with all rent due up to the time of said tender, then this lease is by said tender de- termined, and the said A. B. will on the same day make, acknowl- edge and deliver to said C. D. or his grantee a grant of said premises. No. 321. — Lease — Covenant not to Assign, Underlet, Alter or Improve. And the said A. C. agrees not to assign this lease, nor to im- prove nor permit any other person to improve said premises, or to make or permit any other person to alter any part or the whole of said premises without the lessor's consent in writing first obtained. Lease, 243 No. 322. — Lease — Covenant as to Holding Over. And if the said party of the second part shall hold over said term, with the consent, expressed or implied, of the partv of the first part, such hoidinj;^ shall be construed to be a tenancy only; from month to month. No. 323, — Lease — Covenant as to Taxes. And it is hereby ag^rced that the said A. C. will, as additional rent, pay and discharge all taxes and assessments which may be- levied during said term upon said premises. No. 324. — Covenant — Exception of Timber, etc. Except, and always reserved, out of this present lease, all tim- ber and all other trees whatsoever, which now are,- or at anv tim.e hereafter shall be standins^ and being in, upon and about the said leased premises, or any part thereof, with free libertv of in- gress, to and for the said A. A., his heirs and assigns, servants and workmen, from time to time, and at all times during the term hereby leased, the same to fell, stock up, cut down, hew and carry away, in and through the said leased premises, or anv part thereof (doing no willful hurt or damage to the grain and grass of the said B. B.. his exeaitors, administrators and assigns), at all times during the term hereby leased, and fr^e libertv to enter into and upon the said premises, and every part thereof, to view the condition of the repairs thereof. No. 325. — Covenant to Repair, the Lessor Finding Materials. Also that he, the said B. B., his executors, administrators and assigns shall, and will, at his and their own costs, well and suflR- cientlv repair, maintain and keep in repair the said tenement and all other buildings, hedges, and fences belonging to the said premises, and he, the said A. A., will permit the said B. B., his heirs and assigns, to take from said premises all necessary mate- rials for said repairs. No. 326. — Lessee Covenants not to Burn the Straw, etc. And further, that the said B. B., his executors, administrators and assigns, shall not, at any time or times, dtiring the last hvo years of the said term. sell, give away, or otherwise dispose of, anv of the straw which shall be growing and arising upon the said leased premises, and shall not burn any straw, except for the use of their own families, etc. 244 New Book oi^ Forms. No. 327. — Lessee Covenants not to Lop the Trees, etc. And that the said B. B., his executors, etc., shall not nor will, at any time or times during the time hereby leased, lop or cut any of the trees or wood belonging to the said premises, but such wood as has been usually lopped and cut by the former and other tenants, and those only of tzvelve years' growth, and the lops which shall arise, and come therefrom, not to be sold or disposed of, in any other way, and shall not, at any time during this lease, inordinately bum or waste any of the firewood which is so al- lowed to be used, and shall keep the said trees, as also all the fruit trees and wood, from all willful or negligent hurt or waste. No. 328. — Lessee Covenants to Build One or More Brick Buildings, etc. And that he, the said C. D., his executors, administrators, or as- signs, will, before the expiration of the first year of the said term, at his and their own costs, build and complete in a work- manlike manner, finish one or more good and substantial brick tenements, upon some part of the ground hereby demised, and shall and will lay out and expend therein the sum of $5,000 or upward ; and also that he, the said C. D., his executors, etc., shall, and will from time to time, and at all times from and after the said tenement, erections and buildings on the said piece of ground hereby demised, shall be respectively completed and finished, dur- ing the remainder of the said term when, where and as otten as need or occasion shall be and require, at his and their own costs and charges, well and sufficiently repair, maintain and keep the said tenements, erections and buildings and all the zvalls, rails, lights, pavements, grates, privies, sinks, drains, and watercourses thereunto belonging and which shall belong to the same, in, by and with all, and all manner of, needful and necessary repara- tions, cleansings, and amendments whatsoever. No. 329. — Lessee Covenants not to Carry on Any Offensive Trades. And that he, the said C. D., etc., shall not, nor will, during the said term, permit or suffer any person or persons to use, exer- cise, or carry on, in and by the said hereby demised premises, or any part thereof, any trade or business which may be nauseous or offensive, or grow to the annoyance, prejudice or disturbance of anv of the other tenements of the said A. B. near or adjoin- ing thereto. No. 330. — Lessee Covenants to Insure at His Own Expense. And that he, the said C. D., his executors, etc., shall and will, at his and their own costs and charges, from time to time, suffi- Lease. 245 cientJy instirc all and every the tenements, erections, and build- ings, which shall be erected and built upon the said piece or par- cel of ground hereby demised, or any part thereof, from casual- ties by fires during the then remainder of the said term hereby granted, in the M. A. L. & T. Association, and in case the said buildings, or any of them, or any part of any of them, shall at any time or times during the said term be burned, destroyed, or damaged by fire, shall and will, from time to time, immediately af- terward, rebuild, or well and sufficiently repair the same. No. 331. — Lessee Covenants that Lessor may Enter to Make an Inventory, etc. And further, that it shall and may be lawful for the said A. B., his heirs and assigns, or any of them, with workmen or others in his company, to enter upon the said premises, and every part thereof, at seasonable and convenient times in the day, at any time during the last Hve years of the said term, to make an in- ventory of the several fixtures and things, then standing and be- ing in and upon the said hereby demised premises, which are to be left at the end of the said term for the use of the said A. B., his heirs and assigns, pursuant to the covenant hereinbefore in that behalf contained, as also twice or oftencr in every year, dur- ing the said term, to view, search, and see the defects, and want of reparations which, upon every or any such view or search, shall be from time to time found, to give or leave notice or warning thereof in writing, at or upon the said demised premises, unto and for the said C. D., his executors, administrators or assigns, to repair and amend the same. No. 332. — Lessee Covenants to Repair. And that the said C. D., his, etc., shall and will within three montlxs next after every such notice or warning shall be given or left, at his and their own costs, well and sufficientlv repair, amend, and make good all and every the defects, and want of reparations, whereof such notice or warning shall be so given or left as aforesaid. No. 333. — A Short Agreement for Letting a House for One Year Certain, and for Such Further Time as Both Parties shall Agree. Agreed the ^d day of June, between, etc.. the said /. B., doth let unto the said /. P., and he takes, all that, etc.. for one year from, etc., and for such longer time after the expiration of the said one year, as both the said parties shall agree, and until the end of three months after notice shall be given, bv either of the 246 New Book of Forms. said parties to the other of them, for leaving the said premises, at, etc., for the yearly rent of, etc., lawfully, etc., to be paid quar- terly on, etc., by even and equal portions, which said yearly rent the said /. P. doth hereby for himself, his executors and admin- istrators, covenant and agree to pay to the said /. P. accordingly, for so long time as he shall hold and enjoy the said premises as aforesaid, and until the end of the said three months next after notice shall be given by either of the said parties, to the other of them, for leaving the said premises as aforesaid. No. 334. — A Short Lease by Way of Memorandum. Memorandum, that K. D., Esq., leased to R. S. the tenement in N. street in A. K., in which the said K. D. lately dwelt, to hold for one year from the ^d of June next ensuing, and so from year to year; yielding and paying yearly, and every year, unto the said K. D. the sum of $1,000 by four even and equal payments, the first payment to he made on, etc., the second payment un, etc., in every year. And the said K. D. did agree to repair the prem- ises, other than the glass windows, thereof and pales before the door ; and the said R. S. did agree to repair the windows during the term; and the said K. D. did agree that R. S. might retain the first quarter's rent, laying it out in painting the outside of the said house, and the overplus (if any) otherwise in and about the said house ; and further, that the said R. S. might enter at any time before midsummer. Provided, that if either of the said parties, their executors or administrators, should be minded to determine the said lease, and thereof should leave and give notice in writing to the other, his executors or administrators, one quar- ter of a year before the end of any year, then and from the end of the same year the said lease should detemiine and be void. No. 335. — A Lease to Enable One to Bring an Ejectment. This Indenture, made, etc., between T. H., of A. B., of the one part, and /. P. of A. B., of the other part, witnesseth, that the said T. H., for divers good causes and considerations him hereunto moving, hath demised, and to farm let, and by these presents, doth, etc., unto the said /. P., all that, etc., to have and to hold the said, etc., unto the said /. P. from the jc? day of June, 1905, now last past, for and during, and unto the full end and term of Uve years, from thence next ensuing, and fully, etc., yielding and paying therefor, yearly and every year, during the said term, unto the said T. JL, his executors, administrators and assigns, one dollar. To the intent and purpose, that the said /. P. may be and become forthv/ith the tenant of the said T. H., in order that an ejectment may be brought by him as plaintiff, for Lipase. 247 the recovery of the possession thereof, for the said T. H. against /. D., as the casual ejector. In witness, etc. No. 336. — An Indenture for Continuing a Lease for a Longer Term, After the Expiration of the Present. And it is hereby declared and agreed, by and between the said parties to these presents, that they and their respective heirs, ex- ecutors, administrators and assigns, shall and will by these pres- ents, during the additional term of 10 years hereby granted, stand and be bound, for, and in respect of, the said hereby demised premises, with the appurtenances, in such and like covenants, conditions, and agreements, respectively, as they, the said parties, and tlieir respective heirs, executors, administrators and assigns, do now stand bound, in and by the said within lease, for and dur- ing the now residue unexpired of the within mentioned term hereby granted ; it being the intent and meaning hereof that this present indorsed lease, and the additional term hereby granted, shall be upon such and the like footing, and all the covenants, clauses, conditions, and agreements, respectively therein contained, be equally available, take place, and have the like force and ef- fect, to all intents and purposes, as if every article, clause, mat* ter, and thing contained in the said within lease were inserted and contained in this present indenture. *' No. 337. — Habendum and Tenendum of a Lease for Lives and Years. To have and to hold the said messuage or dwelling-house, and all and singular other the premises hereby demised or mentioned or intended so to be, with their and every of their appurtenances, unto the said IV. P., his executors, administrators, and assigns, from henceforth, for and during the natural life and lives of him, the said IV. P., aged about g years, of E. P., his daughter, aged about 8 years, and T. P., his son, aged ahout 6 years, and of the survivor or longer liver of them, and for and during the further term of 10 years, to commence from and immediately after the neath of the survivor of them, the said IV. P., £. P., and T. P., and from thenceforth next ensuing and fully to be complete and ended, to and for all tenancy uses whatsoever (willful waste ex- cepted), yielding and paying therefor, etc. No. 338. — Proviso Empowering Lessor to Enter for Nonpay- ment of Rent or Commission of Waste, etc. Provided always, these presents are upon this express condi- tion, that if the said yearly rent or sum of $i,noo, or any part thereof, shall be behind and unpaid by the space of jo da\s next 248 New Book of Forms. after the said days of payment, whereon the same is appointed to be paid as aforesaid, or if the said W. P., his executors, admin- istrators, or assigns, shall do, or wittingly or willingly commit, or suffer to be done or committed, any willful or voluntary waste in or upon the said premises, or any part thereof (except the pulling down of old buildings in order to rebuild the same), that then, and in either of the said cases it shall and may be lawful to and for the said S. W., his heirs and assigns, into and upon the said premises, or any part thereof in the name of the whole, wholly to re-enter, and the same to have again, repossess and enjoy, as in his and their former estate, anything herein contained to the contrary thereof, in any wise notwithstanding. No. 339. — A Proviso for Either the Lessee or Lessor, to Deter- mine a Lease on Giving Notice Six Months Before. Provided always, and these presents are upon this condition, nevertheless, that it shall and may be lawful, to and for either the said E. R., his heirs or assigns, or the said B. S., her executors, administrators or assigns, to determine and make void this lease, at the expiration of the first five or ten years of the said term of twenty years hereby granted, on causing notice or warning in writing for that purpose, to be given to, or left for the other of them, his or her heirs, executors, administrators or assigns, at his or their usual or last place of abode, six calendar months at least before the time limited for determining the same as afore- said, anything herein contained to the contrary' thereof, in any wise notwithstanding. No. 340. — A Proviso Making Void a Lease in Case of Death of Lessee. Provided always, and these presents are upon this condition nevertheless, that if the said M. S. shall happen to die at any time during the term hereby demised, and the executors, administra- tors or assigns of the said M. S. shall at any time after the ex- piration of the first three years of the said term of seven years hereby demised be minded and desirous to quit and leave the said demised premises, and of such his mind and intention, shall, on any day after the expiration of the said three years, give or leave six months' warning in zvriting, to or for the said C. D., his ex- ecutors, administrators or assigns, having first paid the rent and performed and kept all and singular the covenants, provisos, and agreements herein contained, on his or their part to be paid, done, and performed, then, and in such case, at the expiration of the said six months (such notice having been first given as afore- said), these presents, and the term hereby granted, as for any fu- Lease;. 249 tnre contmnance, shall cease, determine and be utterly void, any- thing herein contained to the contrary tliereof, in any wise not- withstanding. No- 341. — The Lessor Covenants to Sell the Inheritance to the Lessee, on Request. And in case the said C. D. (the lessee), his heirs, exeoitors, administrators, or assigns shall, during the said term, be desirous to purchase the inheritance of the premises hereby demised, and shall give notice of such intention or desire, in writing, during the same term, unto the said A. B. (the lessor), his heirs or as- sign, at his or their usual place of abode, then he, the said A. B., his heirs and assigns, shall and will at any time during the said term, at the charges in the law of the said C. D., his heirs, execu- tors, administrators or assigns, convey and assure the inheritance of the said hereby demised premises, unto the said C. D., his heirs, executors, administrators or assigns, and to the heirs and assigns of him, or them, or as he or tliey shall direct ; he, the said C. D., his heirs, executors, etc., paying unto the said A. B., his heirs or assigns, the sum of $10,000, as the consideration of such purchase, and also paying to him or them all arrears of rent which shall be then due, etc No. 342. — Lessee not to Permit Noxious Trades to be Car- ried on. And also that he, the said B. H., his executors, administrators, and assigns, shall not nor will, at any time during the continu- ance of the said term hereby granted, permit or suffer any person or persons to use or follow, in or upon the said hereby demised tenement and premises, or in or upon any part thereof, the trade of butcher, currier, soap-boiler, brewer, distiller, tallow-chandler, tinman, dyer, founder, smith, or any nauseous or offensive busi- ness whatsoever, without the license and consent of the said F. IV-, his heirs, executors, administrators, or assigns, first had and obtained in writing for that purpose. No. 343. — To Inhabit Part of the Premises. And also that they, the said C. D. and E. G., etc., some or one of them, shall and will personally inhabit and occupy the said farmhouse, with the appurtenances, with their, some, or one of their families, and not shut up or desert the same during the said term. » No. 344. — Not to Assign or Underlease without License. And also that they, the said C. D. and £. G., their executors and administrators, shall not nor will, at any time or times during 250 New Book of Forms. the said term, assign or set over, underlease or underlet the de- mised premises, or in any other manner part with the possession or ocaipation of the same, during any part of this demise, with- out the special license and consent of the said A. B., his heirs or assigns, in writing under his or their hands and seals, first had and obtained.* No. 345. — Covenant that the Demised Premises shall not be Used as a Workhouse or Schoolhouse, etc. And also that the said hereby demised premises, or any part thereof, shall not, at any time during the said term of ten years, be set, let, demised or used, as or for a poorhouse or workhcnise for the poor of the town of Alameda aforesaid, or any of them, to dwell or inhabit in, or as or for a school for the education of children, etc. No. 346. — A Covenant that the Tenant shall Lay Out, eta., in Repairs. And the said A. B. doth covenant, etc., to and with the said C. D., his heirs and assigns, that he, the said A. B., his, etc., shall and will, within one year next after the date hereof, lay out and expend the sum of $1,000 in repairing, amending, adorning, and beautifying the said tenement hereby demised. (Or, shall and will, at his own costs, well and suificiently , put the said tenement hereby demised in a good, sufficient, substantial and tenantable repair, and particularly shall and will, etc. [the particulars agreed No. 347. — An Agreement that Lessee may Deduct Taxes and the Charges of Repairs Out of the Rent. And also that it shall and may be lawful to and for the said A. B., his, etc., to retain, deduct, and keep out of every year's rent agreed to be paid to the said C. D., his heirs or assigns, as aforesaid, all and so much money as he, the said A. B., his, etc., shall, from time to time during the said term, have paid for the taxes, agreed to be paid by the said C. D., his heirs and assigns. And also for such repairs, amendments, and additions by him made and done, in and about the premises, by and with the con- sent or direction of the said C. D., his heirs or assigns, or with- out, so that such money be laid out and expended in repairing and supporting the said premises, or some part thereof. *This covenant should be made paxt of the proviso for making the lease void. I Lease, 251 No. 348. — Habendum of a Demise for Tor^e Lives. To have and to hold the said premises hereinhefore demised and granted with their appurtenances, unto the said /. B., his executors, etc., from June j, IQO^, now last past, for and during the term of nine years thence next ensuing", and fully to be com- plete and ended, if E. B. and M. B. (daughters of the said /. B.), and A. B. (son of the said /. B.), or any or either of them, shall so long: live. ■& No. 349. — Another Habendum, To have and to hold, etc., unto the said W. R., his heirs and as- signs, from the making hereof, for and during the natural lives of R. R., son of the said IV. R., aged about fifteen years or there- abouts (and so of the others), and during the lives and life of the survivors and survivor of them, etc. No. 350. — A Reddendum to a Person, for Life, and After, to Those in Remainder. Yielding and paying therefor, yearly and every year during the said term of twenty-one years, at or in the hall of the mansion-house, commonly called C. Hall, in M., the yearly rent or sum of $1,000, unto the said D., and his assigns, during the life of the said D., and after his decease, to such other person and persons as for the time being shall be entitled to the immediate reversion or remainder of the premises hereby leased, expectant on the determination of the said term, by even and equal quar- terly payments, the first of the said quarterly payments, etc. No. 351. — A Covenant to Renew a Lease. And further that he, the said A. B., his, etc., at the costs and charges of the said C. D., his executors, administrators or assigns (if thereto requested by him or them, six mantlis before the expi- ration of the term hereby remised), shall and will grant a further lease of the aforesaid premises to the said C. D., his. etc., for the further term of tzventy years, to commence from the expiration of the term hereby granted, at and under the same yearly rent, and containing therein the like covenants and agreements, as are in these presents contained, he, the said, C. D., his, etc, executing at the same time a counterpart thereof, etc. No. 352. — Exception of a Watercourse. Except and always out of this present demise reserved unto and for the said W. S. and F., his ivife, their executors, admin- 252 New Book of Forms. istrators and assigns, and the inhabitants of the said tenement, the watercourse or passage for water, made under or through tfve shop of the said hereby demised tenement for conveyance of water from the yard or back part of the said tenement, and free Hberty of ingress, egress, and regress into, upon, or over the said hereby demised tenement, for him, the said W. S., and F., his ■\\nfe, their executors, administrators, tenants, workmen and as- signs, at all times convenient during the term hereby granted, to cleanse, repair, and amend the same watercourse. No. 353. — Exception of a Way. Except and always reserved unto and for the said B. G., his ex- ecutors, administrators, tenants and assigns, and all other persons whatsoever free leave and liberty to pass and repass, in, by or through the way or passage lying through the said tenement into a place there, on the back part of the said tenement, at all con- venient times, in the daytime only, during the term of years here- inafter granted. No. 354. — Exception to See the Circus Go by. Except and always reserv'ed unto the said A. and B., their ex- ecutors, administrators, and assigns, liberty for them and such other persons as they or either of them shall appoint (not exceed- ing in number 50 persons) to stand in the balcony belonging to the said hereby demised premises, and to see the shows and pas- times that shall be or appear in the streets near thereunto, upon the day commonly called Thanksgiving day, and on such other eminent or festival days, such as Labor day, whereon any shows or pastimes, or other public matters shall appear to be exhibited, and liberty to pass and repass to and from the said balcony for the purpose aforesaid, by and through the said hereby demised taiement, from time to time, and at all times during the said term hereunder granted. No. 355. — Lease of Goods.* This Indenture, made the ^d day of June, in the year 1905, between A. B., the party of the first part, and C. D., the party of the second part, witnesseth : That the said party of the first part does by these presents lease imto the said party of the second part, all the following named property [description], for the term of one year, commencing on the jd day of June, A. D. ipo^, said second party paying therefor unto said first party $1,000 on the sixtieth day of each and every two months of said term, until the sum of $6,000 is paid. •This form is used when the lease is to be a pnrchsise when the last rent is paid. It is usually referred as a sale on Lnstallments. Lease. 253 The said party of the second part hereby agrees with said first party, tJiat said second party will pay to said first party the said rait at the times and in tlie manner herein specified, and that shoiild the said rent be unpaid at any time, or as herein speci- fied, then the second party will pay interest on said unpaid rent at tlie rate of /o per cent per month from the date of default in payment, until the said rent is paid, together with reasonable charges and expenses for collecting tlie same, and tliat said sec- ond party will pay all taxes assessed against said goods and chattels while in his possession. Tliat said second party will not assign this lease, nor assign or sublet his interest in or to any of the goods and chattels herein described witliout the written consent of said first party. That said »second party will not remove said property or any part thereof, from the place where they now are, to zvit, No. /pi"/ Maple street, San Francisco, California, without the written con- sent of said first party. That said second party will not suffer or allow any part of said property to come into the custody or control of anv person or persons other than said second party during the continuance of this lease. That upon the failure of the party of the second part to com- ply with any of the terms of this lease, or if any legal process shall at any time be levied upon said goods and chattels, or any part thereof, for or upon any debt or demand now due or to be- come due or claimed to be due from said second party, then this lease shall determine and become void, and the right of posses- sion in and to said goods and chattels, and every part thereof, shall revert to, and vest in said first party, and said first party shall have the right, without notice or service, to take said goods and chattels, and every part thereof, from second party without legal process. That if this lease shall at any time be determined by any of the acts, or by failure to perform any of the acts herein specified, on the part of said party of the second part, then all the rents paid to said first party, by said second party, shall be deemed to and shall be the property of said first party, free from all claims and demands of said second party. No. 356. — Lease of Furniture. This Indenture, made this ^d day of May, 1904, between A, B. and C. D., witnesseth: That in consideration of the rents and agreements to be paid and performed on the part of the said C. D., the said A. B. does hereby lease to the said C. D. the household furniture [or "goods"], described as follows: 254 New Book of Forms. 2 Looking-glasses marked A B on the back. I Bureau " A B on the back. I Grecian table " A B under tJte leaf. 12 Mahogany chairs " A B under the seat. 12 Silver teaspoons " A B on the handle. 1 Piano " A B on the back. 2 Kidderminster carpets " A B in the corner. To have and to hold the same to the said lessee, for the term of 2 years, from the date hereof, the said lessee paying therefor the yearly rent of sixty dollars during the said term. And the said lessee covenants with the said lessor that he will pay the rent aforesaid, in monthly payments of ten dollars each, on the 1st day of each month, during said term, and for such fur- ther time as the lessee may hold the same ; and that he will not assign nor underlet the said furniture, nor any part thereof, with- out the written consent of said lessor; and that he will, at his own expense, replace any and all of said furniture which shall be lost, or carelessly or accidentally injured during the said term; and at the expiration thereof, or the sooner termination of this lease, he will restore the said furniture to the said lessor, in the like good order in which they now are, wear and diminution re- sulting from reasonable use and unavoidable casualties excepted. And it is agreed that, until condition broken, said C. D. shall peaceably retain possession of said chattels, but in case any one or more of the conditions of this lease are broken by the said C. D., the said A. B. may at any time, day or night, enter the place where said furniture, or any part thereof, may be, and remove the same, and he may use all necessary force to remove the prop- erty herein described ; and it is further agreed that time is of the essence of this contract. No. 357. — Lease — Covenant — Loss by Fire. Said furniture [or goods] to be restored to the lessor at the expiration of this lease in as good order as they now are, wear and diminution resulting from reasonable use and unavoidable casualties and accidental loss by fire alone excepted No. 358. — Lease of Mining Claim, This Indenture, made the jaf day of June, in the year 1905, between A. B., lessor, and C. D., lessee, witnesseth : That the said lessor, for and in consideration of the rents, royalties, covenants and agreements hereinafter reserved, and by the said lessee to be paid, kept and performer! , has let, and by these presents does let, unto the said le??ee, all the following described mine and mining property, situated in Socket's Gulch Mining District, county of Leas^ 255 Sierra, state of California, to wit: [Description.] Together with the appurtenances. To have and to hold, unto the said lessee for the term of one year from the date hereof, expiring on the ^d day of June, A. D. 1^04, unless sooner forfeited as determined. And in consideration of the said lease, the said lessee does covenant and agree with said lessor as follows, to wit : To enter upon said mine or premises and work the same in manner neces- sary to good and economical mining, so as to take out the great- est amount of ore possible, with due regard to the safety, devel- opment and preservation of the said premises as a workable mine. To work and mine said premises as aforesaid steadily and con- tinuously from the date of this lease ; and that any failure to work said premises with at least four persons employed under ground for the space of jo consecutive days may by said lessor be con- sidered a violation of this covenant. To well and sufficiently timber said mine at all points where proper, and to repair all old timbering wherever it may become necessary. To allow said lessor and kis agents to enter upon and into all parts of said mine for the purpose of inspection. To not assign this lease, or any interest thereunder, and to not sublet the said premises or any part thereof, without the written assent of said lessor, and to not allow any person or persons ex- cept the said lessee and his workmen to take or hold possession of said premises, or any part thereof, under any pretense whatever. To occupy and hold all cross or parallel lodes, dips, spurs, feeders, crevices, or mineral deposits of any kind which may be discovered in working under this lease, or in any tunnel nm to intersect said In^ Mine lode, or by the said lessee, or any person or persons under him, in any manner, at any point within ^00 feet of the center line of said lode, as the property of said lessor j with privilege to said lessee of working the same, as an appurte- nance of said demised premises, during the term of this lease; and to not locate or record the same, or allow the same to be located or recorded, except in the name of said lessor. To keep at all times the drifts, shafts, tunnels, and other pas- sages and workings of said demised premises thoroughly drained and clear of loose rock and rubbish of all kinds. To deliver up to said lessor the said premises with the appur- tenances and all improvements, in good order and condition, with all shafts and tunnels and other passages thoroughly clear of rub- bish and drained, and the mine in all points ready for immediate continued working (accidents not arising from negligence alone excusing) without demand or further notice, on said ^d day of June, A. D. 1905, at noon or at any time previous, upon demand for forfeiture. 2^6 New Book of Forms. And finally, upon the violation by the said lessee, or any other person under him of any covenant, or covenants hereinbefore re- served, the term of this lease shall, at the option of said lessor, expire and the same and said premises with the appurtenances shall become forfeited to said lessor, and said lessor or his agent may thereupon, after demand of possession, enter upon said prem- ises and dispossess all persons occupying the same, with or with- out force, and with or without process of law, or at the option of said lessor, or in any other manner. Each and every clause and covenant of this indenture shall ex- tend to the heirs, executors, and administrators of all parties hereto, and to the assigns of said lessor; and as said lessor may elect, to the assigns of said lessee. No. 359. — Surrender of a Lease. Know alz, Men by these Presents : That I, the within named A. B., in consideration of ten dollars, gold coin of the United States of America, to me in hand paid, at or before the ensealing and delivery of these presents, do for myself, my executors and administrators, bargain, sell, surrender, and yield up, from the day of the date hereof, unto the within named C. D., and his heirs, executors and administrators, as well the within indenture of lease as the lands and premises therein mentioned, and the term of years therein yet to come, with all my right, title, and interest thereto ; and I do hereby covenant, that the same are free and clear of all encumbrances of what kind soever, at any time by me, or by my privity, consent, or procurement, done, committed, or suffered. No. 360. — Notice to Quit by the Landlord, To W. B.: Take notice that you are hereby required to quit and deliver up to me the possession of the premises now held and occupied by you, being the premises known as [or situated] [description], at the expiration of the month [or week, or year, as may be] of your monthly tenancy of said premises, commencing on the Hfth day of April, ic>o§, and ending on the fifth day of May, 1905. This is intended as a month's notice to quit, for the purpose of ter- minating your tenancy aforesaid- No. 361. — Notice of Quitting Premises by Tenant. To G. /., Landlord: Please take notice that I shall quit possession, and deliver up the premises now held and occupied by me, being the premises [description], at the end of tlie next month of my m^ithly ten- Le-^se. 257 ancy of said premises, to wit, on the fifth day of May, ipo^, as I intend to remove therefrom, and to terminate the said tenancy. No. 362, — Notice of Application to be Restored to Premises. [Title of Court and Cause.] You will please take notice that on Monday, August 28, 1905, at the hour of ten A. M., or as soon thereafter as the matter can be heard, S. S., the defendant in the above-entitled action, will move R. B. E., Esq., justice of the peace, at his office in the town of Mackeraville, Chancery township, Siskiyou county, California, to release said defendant from the forfeiture of his lease declared in said action, and that he be restored to his former estate. Said motion will be made on the ground that said forfeiture is great hardship on said defendant, and will be based on the peti- tion of said defendant, and the finding and judgment and other papers in said action. NOTE— California, C. C. P., sec. 1179. No. 363, — Notice to Perform Covenants of Lease. To B. M., Esq. : You are notified that in the lease under which you hold the premises No. 2404 Mission street, city and county of San Fra^v- cisco, as my tenant, you covenanted that you would give the du'cUing-house and outhouses and front fence on said premises two coats of good paint, the second as soon as the first is dry, ex'cry tiiird year, commencing January i, 1905; tJiat you liave vio- lated said lease by neglecting to paint the houses and fence on said premises at all. Now, this is to notify you that you are re- quired to give said dwelling-house, outhouse, and front fence, two good coats of paint, as you covenanted to do as aforesaid, or deliver up possession of the same to the undersigned, or I shall institute legal proceedings against you to recover possession of said premises. Yours truly, NOTE.— California, C. C. P., sec. 1161. The notice may be varied so as to embrace every possible covenant in a lease. In all cases it is good practice to copy from the lease into the notice the covenant which is violated. No. 364. — Notice to Pay Rent or Surrender Possession. To J. R. H., Tenant in Possession: You are hereby required to pay the rent of the premises here- inafter described, and which you now hold possession of, amount- ing to the sum of forty dollars, being the amount now due and owing to me by you for one month's rent, from the twentieth day New Forms — 17 25S New Book of Forms. of September, ipo^, to the twentieth day of October, 1905, or de- liver up possession of the same to F. S., my agent, who is hereby authorized to receive possession thereof, or the rent, due and un- paid, from you, or I shall institute legal proceedings against you to recover possession of said premises, with treble rents. Said premises are situated in the city and county of San Fran- cisco, and described as follows : All that certain frame dwelling-house situate at the north- easterly corner of Clay and Webster streets ; said premises hav- ing one hundred feet frontage on Webster street, and twenty-Uve feet on northerly line of said Clay street, and having the entrance on said Clay street, said premises being designated and known by the No. 2348 Clay street NOTE. — The above is in conformity with Code of Civil Procedure of California, section 1161. It is not necessary to say in such notice that the premises must be surrendered within three days. The codes direct that three days' notice shall be given. In tenancies at will the time must be stated: C. C, sec. 789. No. 365. — Notice of Change of Terms of Lease. To /. R., Esq. : You are hereby notified that at the expiration of the present month of your tenancy, which will be on the fifteenth day of Jan- uary, ipoj, the terms of your lease of the premises you occupy, under tenancy from month to month, situate in the city and county of San Francisco, and described as follows, to wit : AH that cei'toA.n store on the northerly side of Washington street, be- tween Sansome and Montgomery, and designated and known by the No. 5jd Washington street, will be changed as follows, to wit: The monthly rent thereof will be two hundred and fifty dollars, United States gold coin, per month, payable montJily, in advance, on the sixteenth day of each and every month you continue to hold possession thereof, after the expiration of Ijie current month, instead of the sum of iifty dollars heretofore paid by you. NOTE. — Section 827 of the Civil Code of California provides for changing terms of lease or tenancy from month to month arbitrarily; and the amount to which the rent may be raised is unlimited in those eases specially authorized by the statute. No. 366. — Notice Terminating Tenancy. You are hereby notified that on the Urst day of September, 1905, j'our lease or tenancy for the premises you hold possession of, sit- uate in the city and county of San Francisco, state of California, and described as follows, to wit [description], will terminate and end, and you are requested and required to deliver possessicto thereof to Mr. R., on said Urst day of September, ipo^. (Dated.) LeasiE— Liens. 259 No. 367. — Notice — Termination — Tenancy at Will. To A. B., Tenant in Possession : Yon will please take notice that the tenancy under which you hold i^ossession of the property described as follows [descrip- tion], is by this notice terminated, and you are notified to remove from said premises within the period of thirty-five days from and after the jd day of June, 1905. NOTE.— a C, see. 789. No. 368. — Acknowledgment of Tenancy. Know alIv Men: That I acknowledge that A. B. C. is the owner of the premises described as follows: [Description.] And I declare that I occupy said premises as tenant at will of the said A. B. C, and that I will surrender the said premises upon tlie written order of said owner upon ten days' notice. No, 369. — Notice to Intended Purchaser that Person in Pos- session Claims an Interest in Premises. Please take notice that I am in the possession of the premises described as follows: [Description.] That I have been in the possession thereof since June, IQ04, adversely to A. B. C, who claims to own the same. LIENS. No. 370. — Materialman's Lien. Notice is Hereby Given to All Wliom It May Concern: That the said G. P. Company was during all the times herein- after mentioned, and still is, a corporation, organized and doing business under the laws of the state of California. That one of the purposes for which said corporation was organized ivas tlie m-anufacture and sale of explosives and other articles used in blasting. That the S. D. F. Company was during all the times herein- after mentioned, and still is, a corporation, organized and doing business under tlve laws of the state of California. That one of the purposes for which said corporation was organized and in which it engaged was the construction of a flume or structure or ditch from a diverting dam owned by it on the San Diego ri^-cr, San Diego county, California, to its city reservoir near the said city of Son Diego. 26o New Book of Forms. That said structure consisted of culverts, surfaced ditches, tun- nels, flumes and approaches to tunnels, and about three thousand feet of tunnels, the said structure being about fifty miles long, in said county of San Diego. That the S. D. F. Company aforesaid zvas and is the ozvner of said diverting dam, flume, surface ditches, tumtel approaches, tun- nels, and reservoirs. That /. /. is the name of the contractor who on the thirtieth day of March, ipoj, as such contractor, entered into a contract in writing with said S. D. F. Company, under and by which the said /. agreed to do certain work on said flume, ditches, tunnels, and structures, and the following is a statement of the terms, time given, and conditions of said contract, to wit : The said contract is hereto attached and referred to, and, with all the indorsements thereon and supplements thereto, made a part of this notice or claim of lien, and marked ''Exhibit A." That immediately after the date of said contract, to wit: on or about April g, ipo§, the said /. commenced work under said contract on said structure, and continued work as aforesaid until August 10, 1905, and there became due him under the terms of said contract about the sum of $40,000. That said contract has not been fully performed on the part of /., but, on the contrary, the said /. did on or about the tenth day of August, A. D. ipo^, abandon his contract, stop all work, and surrender said contract to said vS*. D. F. Com,pany, and said F. Company accepted the surrender of said contract and took and accepted possession of said structure and accepted the said struc- ture, flumes, ditches, and tunnels, and has ever since continued in the occupation and use of the same, and said works accepted as aforesaid. That thirty days have not elapsed since said contract was abandoned, and the said /. has never resumed said work and docs not intend to do so. That said contract was not filed in the office of the County Re- corder of said San Diego county, prior to June 6, ipoj. That the amount of the contract price for said work under said contract was, as stated therein, to wit: "Exhibit A." That on the ninth day of April, 1905, the said G. P. Company entered into a written contract with said /. as such contractor to supply him with powder, caps, and fuse to be used atui which was used by him in performing and zvorking under his said con- tract with said F. Company, which said contract is herein re- ferred to for the terms, time given, and conditions thereof, and made part hereof, and marked "Exhibit B." That under its said contract the G. P. Company, between the ninth day of April, and the tenth day of August, ipo§, furnished said /. (and at the instance of said S. D. F. Company) powder, Liens. 2O1 caps, and fuse to the value of $7,221. 5^, to he used and ivhich were used by the said /. in the construction of said flume, tunnel, ditch, and structure. That no part of said sum has been paid, and' there are no offsets or credits, and the same, after deduct- ing all just credits and offsets, is all due the said G. P. Company under its said contract. The property to be charged with the Hen is situated in San Diego county, California, and is the same property described herein and in said contract aforesaid, to wit: "Exhibit A." Wherefore, the G. P. Company claims a lien on the said de- scribed property described in said contract to the extent of $J,- 221.57, interest and costs and counsel fees, under the laws of the state of California. Mechanics' Liens Generally. — A mechanic's lien only exists upon eomplianee with the statute: Morris v. "Wilson, 97 Cal. 644, 32 Pac. 801. The first California case was Hooper v. Flood, 54 Cal. 218. It was said in the first case that a substantial observance was required. In Davis V. Livingston, 29 Cal. 283, it was said that the contractor must comply Btrietly with the provisions of the law. Cited in Shaver v. Murdo(»k, 36 Cal. 298. In Willamette etc. M. Co. v. Los Angeles C. Co., 94 Cal. 229, 20 Pae. 629, it was held that a laborer or materialman must file his claim in the recorder's office with as much specification, and within the time limited by the statute, as if he himself had made a direct contract for his labor or for material with the owner. Contracts to be in Writing When — Recording of. — If the contract price does not exceed one thousand dollars, the contract need not be in writing, to be good between the owner and contractor, without a reservation in it of twenty-five per cent of the contract price for thirty- five days after the completion of the work: C. C. P., sec. 1183; Siillinger V. Kerkow, 82 Cal. 42, 22 Pae. 932. To matters of that description the case of Barber v. Reynolds, 33 Cal. 497, and 44 Cal. 519, is applicable. In Santa Monica Lumber Co. v. Hege, 119 Cal. 376, 51 Pac. 555", Sidlin- ger v. Kerkow, above noted, it was held that such contracts, if in writ- ing, need not be recorded. As to recording contracts where the amount to be paid exceeds one thousand dollars, it has been held in several cases that the recording must precede commencing work: Kellogg v. Howes, 81 Cal. 170, 22 Pae. 509, 6 L. R. A. 588; Spinney v. Grifl!ith, 98 Cal. 149, 32 Pac. 974. The last case is Marcbant v. Hayes, 117 Cal. 669, 9 Pac. 840. There are thirty-eight volumes of California Reports be- tween Kellogg V. Howes, 81 Cal. 170, 22 Pac. 509, 6 L. R. A. 588, and :^^archant v. Hayes, 117 Cal. 669, 9 Pac. 840, and it appears that it re- quired the time covered by those thirty-eight volumes for the California Bar to be certain that section 1189, Code of Civil Procedure, meant what it said. Those Who may have Lien. — A person who performs labor in the construction of a building at the request of a contractor has a lien: Patent Brick Co. v. Moore, 75 Cal. 205, 16 Pac. 890. One performing manual labor in a mine is also entitled to a lien, though he is called superintendent of the mine: Palmer v. Unca'^ Min Co., 70 Cal. 614, 11 Pac. 666. A cook is not entitled to a lien for services in cooking for laborers ftnd others who were entitled to liens: McCormick v, Los Anccles Water Co., 40 CaL 185. 262 New Book op Forms. One who advances money as a loan expressly to be used in payment of materials and labor used in the construction of a building has no lien: Godfrey v. Caldwell, 2 Gal. 489, 56 Am. Dec. 360. One who did not labor on a building, or furnish materials therefor, bnt was employed by the briek men to haul brick for them, is not en- titled to a lien: Adams v. Burbank, 103 Gal. 646, 37 Pae. 640. Laborers and materialmen under a contractor for part of the work on a structure are entitled to liens: Pacifi'" M. L. Ins. Co. v. Fisher, 106 Gal. 224, 39 Pae. 758. Patterns used in the manufacture of couplings bv a materialman and the boxes in which they were packed for ship- ment are too remote to be allowed as a base for a materialman's lien: First Nat. Bank of Ohio v. Perris Irr. Dist., 107 Gal. 55. 40 Pae. 45. Persons who were merely engaged by the contractor to haul slate to the building and deliver it to the contractor have no lien: Wilson v. Nugent, 125 Gal. 280, 57 Pae. 1008; but a person directly employed by the contractor as the agent of the owner in the hauling of materials to be used in the construction of a building has a lien on the building: Mc- Clain V. Hutton, 131 Cal. 132, 61 Pae. 273. 63 Pae. 182, 622. One who sells material to a materialman can claim no lien therefor: John A. Roebling's Sons Go. v. Humboldt Electric Light Co., 112 Gal. 288, 44 Pae. 568. A contract with a contractor to furnish manufactured millwork for the erection of a building is a materialman only, and not a subcontractor, and one who furnishes doors and other stock material has no lien for the materials so furnished: Wilson v. Hind, 113 Cal. 357, 45 Pae. 695. It must appear that the materials were furnished expressly to be used for the particular building on which the lien is asserted: Weatherlv v. Van Wyck, 128 Gal. 329, 60 Pae. 846. Laborers who have actually performed work, notwithstanding their employment is general, may have a lien: Ah Louis v. Harwood, 140 Cal. 500, 7*4 Pae. 41. Powder consumed in blasting in ditch work, although it vanished in a flash when used, held to be material furnished: Giant Powder Co. v. San Diego Flume Co., 78 Cal. 193, 20 Pae. 419. Street Work. — Section 1191, Code of Civil Procedure, gives a lien for street work in front of lots in any incorporated city or town, and will be npheld in cases where the owner of the lot orders the work done: Santa Cruz etc. Co. v. Lyons, 133 Cal. 114, 65 Pae. 329. Knowledge of Claimant as to Ownership. — ^If the person claiming a lien knows that the person having charge of a mine and who emploved liim did not own the mine, and was not working it as the owner's repre- sentative, he is not entitled to a lien on the authority of his employer's agency: Jurgenson v. Diller, 114 Gal. 491, 55 Am. St. Bep. 83, 46 Pae. 610. Presumption as to Ownership. — Open and continued acts of any person having charge of property upon which labor is done is prima facie evi- n dence that such person was the agent of the owner for the purposes of section 1192, Code of Civil Procedure, though the owner may rebut r>re- Bomption of his knowledge by proof of his want of knowledge, and that he exercised care: Donohoe v. Trinity Min. Co., 113 Gal. 119, 45 Pae. 259. Lien Sustained by Judicial Notice of Words. — A court will take judi- cial notice of all English words and phrases and of all legal expressions: C. C. P., see. 1875; and that such expressions as "shafts," "tunnels," *' chutes," "stopes," "uprises," "cross-cuts," "inclines," etc., when applied to mines, signify instrumentalities through which mines are worked. Work done by lessees in sinking a shaft under a lease from the Liens. 263 owTicrs which provides that the Ipssocs mnj sinlc shafts, mnst be dromed to have been done with the lessor's knowledge, and in the absenep of notice, the mine is subject to liens for work in the shaft: Hines v Miller, 122 Cal. 519, 55 Pat. 401. Owner or Eepnted Owner. — A stat^^ment tliat one of the named de- fendants "was, and still is, the reputed owner of the land on whirh the honse was moved," and that the defendants [naming them], are the "reputed owners" of the house, is a sufficient description: PaJmer V. Lavinge, 104 Cal. 30, 37 Pac. 775. The name of the owner or reput<>d owner may be stated in the alterna- tive: Corbett v. Chambers, 109 Cal. 178, 41 Pac 873. A claim of lien stated the home of the reputed owner, but did not state that he was the owner. The lien was upheld: Byron v. Abbott, 131 Cal. 222, 63 Pac 363. Destructive Work — The Rule— What is.— Tn a case where laborers were extracting gold from a mine, it was said that "drifting in a tunnel" is not the same as "running a tunnel," and "drifting in a tunnel" is not the construction, alteration, or repair of any build- ing or improvement on or in a mine within the meaning of' section 1192, Code of C^vil Procedure, and a laborer doing such work at the instance of a person not the owner is not entitled to a lien upon failure of the owner to post notice of nonliability. In writing the opinion of the court, Mr. Commissioner Britt said: "It is equitable to require the owner when he sees work going forward on an un- authorized building, etc., to give notice that he will not be responsible therefor; but this consideration fails when the work consists in a sub- tracting process, the removal of the very corpus of the property, as win require one who sees a trespasser cutting his timber to post notice of nonliability, under penalty of having his land subjected to a lien for the labor": See Chappius v. Blankman, post; Jurgenson v. Diller, 114 Cal. 491, 55 Am. St. Rep. 83, 46 Pac. 610. See Hines v. Miller, above' referred to. In that case the lease contemplated that the lessees would sink shafts. Hamilton v. Delhi Min. Co., 118 Cal. 148, 50 Pac. 378, is a case where ^ork was done in a mine with the knowle "Norris Eanch": C. C, see. 1092. Mortgage. 305 ferent instrnment as evidence of the debt, or by an exbensirm of time. It can only be discharged by payment or by rdeaee: Satber Banking Co. V. A. R. Briggs Co., 138 Cal. 724, 72 Pac. 352. t No. 423. — Mortgage of Land- This Indenture, made the jd day of June, in the year one thousand nine hundred and five, between A. B., the part}/ of the first part, and C. D., the part3' of the second part, witnesseth : That the said party of the first part, for and in consideration of the sum of $10,000, gold coin of the United States of America, to him in hand paid, the receipt whereof is hereby acknowledged, does by these presents grant unto the said party of the second part his heirs and assigns forever, all tiiat land in the county of Sac- ramento, state of California, bounded and particularly described as follows, to wit: [Description.] Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertain- ing. To have and to hold, all and singular the said premises, to- gether with the appurtenances, unto the said party of the second part, his heirs and assigns forever. This conveyance, however, is intended as a mortgage to secure the payment of [state the object]. This mortgage is also intended to secure, and does hereby se- cure, the payment of all liens (except the lien for taxes on this mortgage), encumbrances, charges and counsel fees herein men- tioned ; said counsel fees to become payable and be allowed if suit be commenced to foreclose this mortgage, and these presents shall be void if such payment be made, according to the tenor and ef- fect thereof ; but in case default be made in the payment of said principal or interest, as herein provided, then the said party of the second part, his executors, administrators and assigns, are hereby empowered to sell the said premises, with all and every of the appurtenances, or any part thereof, in the manner pre- scribed by law, and out of the money arising from such sale, to retain the said principal and interest, together with the costs and charges of making such sale, and ten per cent for attorney's fees, and the same shall be considered as secured by these presents, and costs and charges and said attorney's fees shall be a charge upon said premises, and shall be payable on demand, and may be de- ducted from the proceeds of the sale above authorized ; and the overplus, if any there be, shall be paid by the party making such sale, on demand, to the said party of the first part, his heirs or assigns. No. 424. — Mortgage of Land. This Indenture, made the jrf day of June, in the year one thousand nine hundred and five, between A. B., the party of the New Forma — 20 3o6 New Book of Forms, first part, and C. D., the part3' of the second part, witnesseth : That the said party of the first part, for and in consideration of the sum of $10,000, gold coin of the United States of America, to him in hand paid, the receipt whereof is hereby acknowledg^ed gether with the appurtenances, unto tlie said party of the second part. Im heirs and assigns forever, all that land in the county of Alameda, state of California, hounded and particularly de- scribed as follozvs, to wit: [Description.] Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, and the rents, issues and profits thereof. To have and to hold, all and singular, the said premises, to- gether with the appurtenances, unto the said party of the second part, his heirs and assigns forever. This conveyance, however, is intended as a mortgage to secure the payment of [state the object]. This mortgage is also intended to secure, and does hereby se- cure, the payment of all liens, encumbrances, charges and the counsel fee herein mentioned ; said counsel fee to become payable and be allowed if suit be commenced to foreclose thi^ mortgage ; and these presents shall be void if such payment be made, accord- ing to the tenor and effect thereof; but in case default be made in the payment of the said principal or any installment of interest as provided, then the whole sum of principal and interest shall be due at the option of the said party of the second part, or as- signs, and suit may be immediately brouglit and a decree be had to sell the said premises, with all and every of the appurtenances, or anv part thereof, in the manner prescribed by law, and out of the money arising from such sale, to retain the said principal and interest, although the time for payment of said principal sum may not have expired, together with the costs and charges of making such sale, and of suit for foreclosure, including counsel fees at the rate of ten per cent upon the amount which may be found to be due for principal and interest, by the said decree, and also the amounts, both principal and interest, of all such payments of liens or other encumbrances as may have been made by said party of the second part, by reason of the permissions hereinafter given, and the overplus, if any there be, shall be paid by the party mak- ing such sale, on demand, to the said party of the first part, his heirs, executors, administrators or assigns. And it is hereby agreed that the said party of the second part, his heirs, executors, administrators or assigns, may pay and dis- <-l^ to be done in and about the premises, as fully to all intents and purposes as I might or could do, if person- ally present, with full pov/cr of substitution or revocation, hereby ratifying and confirming all that my said attorney, his substitute or substitutes, shall lawfully do or cause to be done by virtue of these presents. In witness whereof, etc. No. 464. — Povi^er of Attorney to Sell Stocks — Another Form. Know all Men by These Presents: That I, T. O. S., of the city and county of San Francisco, state of California, have made, constituted and appointed, and by these presents do make, constitute and appoint, R. K. A., of said city and county, my true and lawful attorney, for me and in my name, place and stead, to grant, bargain, sell, assign, transfer and set over, for such sum or price, and on such terms as to him shall seem meet, the following number of shares of the capital stock of the fol- lowing companies standing in my name on the books of the said companies, to wit: Three (j) shares of the capital stock of the G. & C. G. and S. M. Company; Hve (5) shares of the capital stock of the O. G. and S. M. Company; and tiventy (20) shares of the capital stock of the J. H. G. and S. M. Company. And for me, and in my name, to sign and execute all necessary papers to that end. Giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, with full power of sub- stitution and revocation, hereby ratifying and confirming all that my said attorney, or his substitute or substitutes, shall lawfully do or cause to be done by virtue of these presents. No. 465. — General Custom-house Power. Know all Men by these Presents: That I, /. D., do, by these presents, constitute and appoint R. R. my lawful attorney, to receive and enter at the custom-house of the district of San Francisco, any goods, wares, or merchandise imported by me, or which may hereafter arrive consigned to me, to sign my name and to seal and deliver for me, and as my act and deed, any bond 330 New Book of Forms. or bonds which may be required by the collector of the said district for securing the duties on any such goods, wares, or merchandise. Also to sign my name to, seal and deliver for me, and as my act and deed, any bond or bonds requisite for obtain- ing the debenture on any goods, wares or merchandise when ex- ported, and generally to transact all business at the said custom- house in which I am or may hereafter be interested or concerned as fully as I could if personally present. And I do hereby de- clare that all bonds signed and executed by my said attorney shall be as obligatory on me as those signed by myself, and this power shall remain in full force until revoked by written notice given to the said Collector. No. 466. — Power of Attorney to Collect Debts. Know all Men by these Presents, etc., and for my use, to ask, demand, sue for, collect and receive all such sums of money, debts, rents, dues, accounts and other demands whatsoever, which are or shall be due, owing, payable or belonging to me, or de- tained from me, in any manner whatsoever, by E. F., of, etc., his heirs, executors and administrators, or any of them [or, by any person or persons residing or being in the state of Califor- nia, giving and granting unto my said attorney, etc. No. 467. — Pov^^er of Attorney to Receive a Legacy — Another Form. Know all Men by these Presents: That whereas L. M., late of Utah, deceased, by his last will and testament, did give and bequeath unto me, A. B., of, etc., a legacy of five hundred dollars, to be paid unto me on the fourth day of July, ipoj, of which said will G. H. and S. T., of, etc., are joint executors: Now, therefore, I, the said A. B., have made, constituted, and appointed, and by these presents do make, constitute, and ap- point, C. D., of etc., my true and lawful attorney for me and in my name, and for my use and benefit, to ask, demand, and re- ceive of and from the said G. H. and S. T., executors as afore- said, the legacy given and bequeathed unto me by the said will of the said L. M., as aforesaid ; and upon receipt whereof by, or payment thereof to, my said attorney, to make, execute, and deliver a general release or discharge for the same ; hereby rat- ifying, confirming, and allowing whatever my said attorney shall lawfully do in the premises. No. 468. — Full Commercial Power of Attorney, with Author- ity to Sell, etc., Real Estate. Know all Men by these Presents: That I, A. B., of the county of Santa Clara, state of California, have made, consti- tuted, and appointed, and by these presents do make, constitute Power op ArroRNEY, 331 and appoint C. D., of the county of Alameda, state of California, my true and lawful attorney, for me, and in my name, and on my behalf, to ask, demand, recover, and receive, all and any sum or sums of money, debts, dues, merchandise, or effects, due, payable, coming, or belonging, or which may at any time be due. payable, or belonging to me, from any person or persons whatsoever; to sell all, or any part, of said goods, merchandise and effects, which may come to his possession or knowledge, on such credit, and for such prices as he may deem meet ; to pur- chase any goods, merchandise, specie, currency, mining or other kinds of stock or other commodities, on my account for such prices and to such amount as he may deem meet, and the same to sell again for my benefit and on my account, for any prices whatsoever, to ship or transport the same, or any part thereof, on my behalf and account, to any post or posts, place o: places, whatsoever, in any vessel or vessels, and with and to any person or persons whatsoever, and there barter, exchange, and dispose of the same ; to insure and cause insurance to be made, of any such goods, merchandise, specie or other commodities, or of any part thereof, at such premiums, and for such risks as he may deem meet ; to accept any bill or bills of exchange or orders, make and execute any note or notes of hand, bond or bonds, or other instruments or contracts, in my name, and on my account, to and for any amount which he may deem meet or expedient; to sell, barter, exchange, or dispose of any real estate of which I am now seised or possessed in fee simple, or for any less estate, to any person or persons, for any price, or in any manner what- soever, and for these purposes to execute and acknowledge any deed or deeds, lease or leases, or other assurance or assurances, with general covenants of warranty against all persons, or any other covenants whatsoever, as he may deem expedient ; to pur- chase any real estate on my account, in fee simple or otherwise, at any price of any exchange whatsoever, and for these purposes to receive, confirm, make, and execute, any contracts, deeds, con- veyances, or other instruments whatsoever; to settle and adjust all partnership accounts and demands, and all other accounts or demands now subsisting, or which may hereafter subsist between me and any person or persons whatsoever, and submit the same to and decide them by arbitration ; to compound for any debts, dues, or demands owing, or which may hereafter be owing to me, and to take less than the whole, or otherwise to agree for the same, in such manner, and on such terms as he, in his discretion, may deem proper ; and for all or any of these purposes, to make and execute any releases, compromises, compositions, agreements. or contracts, by deed or otherwise, in his opinion necessary and expedient in the premises; to pay and discharge all debts and demands due and payable, or which may hereafter become due and payable by me unto any person or persons whatsoever; to 332 New Book of Forms. enter into any lands or other real estate to which I am or may be entitled, and recover the possession thereof, and damages for any injury done thereto, and to distrain for rent due thereon, and also to commence and prosecute unto final judgment and execution, any suit or suits, action or actions, real, personal or mixed, which he shall deem proper for the recovery, possession, or enjo}Tnent of any matter or thing which is or which may hereafter be due, payable, owing, belonging, accruing, or apper- taining to me, for or by reason of the premises, or any part thereof, and, in any such suits or actions, for me in person, or by such attorney or attorneys, or counsel, he may deem necessary or proper to retain or employ to appear and plead, before any courts or tribunals having jurisdiction thereof, and all stipulations, un- dertakings, recognizances and other requisites in any suits or ac- tions, and any question arising on the same, by arbitration or other compromise, and of all receipts and recoveries in the prem- ises, due acquittances and discharges to execute and deliver, and generally to do and perform all matters and things, transact all business, make, execute and acknowledge all contracts, orders, deeds, mortgages, satisfaction of mortgages, leases and assign- ments of the same, and all other writing, assurances, and instru- ments of every kind, which may be requisite or proper to effectu- ate all or any of the premises, or any other matter or thing ap- pertaining or belonging to me, with the same powers, and to all intents and purposes, with the same validity as I could, if per- sonally present [giving and granting unto my said attorney, fidl pozver to substitute one or nwre attorneys under him, my said attorney, in or concerning the premises, or any part thereof, and the same at his pleasure to revoke] ; and hereby ratifying and confirming whatsoever my said attorney [or, his substitute or substitutes] shall and may do, by virtue hereof, in the premises. [The power and authority hereby given and conferred is con- fined and limited to the states of California, Nez'ada, and Ore- gon.] NOTE. — The foregoing form is fnll and complete enough for almost every purpose; but if more power is desired to be conferred upon aa agent, the foregoing forms will readily suggest how easily any addition can be made. No. 469. — Power of Attorney to Vote, etc. Know all Men by these Presents : That I, /. D., do hereby constitute and appoint R. R. my true and lawful attorney, for mc, and in my name, place, and stead, to vote as my proxy at the annual meeting of the stockholders of the JV. G. and S. M. Company, on Certificates Nos. / to 1,000, both inclusive, for the election of trustees and transaction of other business, to be held on the sixth day of August, 1905, and according to the number of votes to which I would be entitled if personally present, with full power of substitution and revocation. Power of Attorney. 333 No. 470. — Revocation of Power of Attorney. Know all Men by these Presents: That whereas, I, G. W., of the city of Stockton, county of San Joaquin, state of Cali- fornia, in and by my letter, warrant and power of attorney, in writings, bearing- date the twenty-third day of March, 1905, make, constitute, and appoint H. E. H., of said city, my true and lawful attorney, for the purposes and with the powers therein set forth, as will more fully and at large appear by reference thereto, or to the record thereof, made on the said twenty-third day of March, 1905, in Book j, of Powers of Attorney, page 48, in the office of the county recorder of the said county of San Joaquin. Now, therefore, I, the said G. W., for divers good causes and considerations me hereunto moving, have revoked, counter- manded, annulled, and made void, and by these presents do re- voke, countermand, annul and make void, the said letter, war- rant, or power of attorney, and all power and authority thereby given, or intended to be given, to the said H. E. H. No. 471. — Substitution of Attorney in Fact. Know au. Men by these Presents: That I, D. J. H., of Santa Cruz, county of Santa Cruz, and state of California, by virtue of the power and authority to me given in and by the letter or power of attorney of A. W. B., of said county, bearing date the second day of February, 1905, and recorded in the office of the county recorder of said" county of Santa Cruz, state of California, on the second day of February, ipOj, in book 2, of Powers of Attorney, page 100, authorising me to sell certain real estate in said Santa Cruz [or, a copy of which power of attorney is hereunto annexed ; or, such other description as may be neces- sary to identify the original power of attorney], do substitute and appoint E. P., of said county of Santa Cruz, to do, perform, and execute every act and thing which I might or could do as the attorney in fact and substitute of the said A. W. B., hereby ratifying and confirming all that the said attorney and substi- tute herein made and appointed shall do in the premises, by virtue hereof, and of the said letter or power of attorney. 334 Niew Book o? Forms. PROMISSORY NOTES. Promissory Note.— The words, "I owe you, C. D., one mil- lion dollars," signed by A. B., constitute a valid, negotiable prom- issory note. It is uncertain because it bears no date. Add a date and it is no longer uncertain in that respect, but is uncertain respecting the time of payment. The rate of interest is not stated, nor need it be. In such case it will draw interest from the day it becomes due. If all dates are omitted, they may be supplied by parol or other evidence. The words, "without grace" are meaningless in California. Originally they meant that the maker had a specified time after the time specified for payment had arrived in which to meet his obligation ; but "grace" is no longer given, unless so written in the obligation: C. C, sec. 3181. No. 472. — Promissory Note. $10,000. San Francisco, May 20, 1905. One year after date, without grace, for value received, I prom- ise to pay to S. D., or order, the sum of ten thousand dollars in gold coin of the United States, of the standard issued from the mint of the United States during the year i8j2, with interest thereon from date until paid, at the rate of nine-twelfths of one per cent per month, said interest payable in United States gold coin of the same standard, monthly, in advance ; and I agree that in case of default in the payment of the said principal sum, or of any amount of monthly interest, as it shall fall due, that such amounts shall bear interest from the date of their respective ma- turity until paid, at the rate of one per cent per month, and that if said monthly interest, or any part thereof, is not paid within thirty days after the same becomes due and payable, then the whole of said principal sum and interest shall forthwith become due and payable at the election of the holder of this note. This note is secured by a mortgage bearing even date herewith. No. 473, — Promissory Note. $1,000. San Francisco, February 16, ipoj. Thirty days after date, without grace, for value received, we jointly and severally agree and promise to pay to /. C, or order, one thousand (1,000) dollars, with interest thereon at one per cent per month, from date until paid, payable monthly, in ad- Promissory Norts. 335 vancc Principal and interest payable at 4J4 California street, San Francisco, in U. S. gold coin. Said interest, if not paid as it becomes due, to be added to the principal and become a part thereof, and to bear interest at the same rate. And in case default should be made in the payment of any interest, when due, then both principal and interest to be- come due and payable immediately after such default, at the c^>tion of the holder of this note. No. 474, — Principal Note to Corporation Secured by Mort- gage. $2^,000. San Francisco, January 16, ipoj. On the sixteenth day of January, 1905, at or about tJiree o'clock P. M. of that day, without grace, and for value received, in gold coin of the United States, I promise to pay to the San Francisco Saz-ings Union, a corporation duly incorporated and doing business as such, or to its order, at its office, the principal sum of twenty-five thousand (2^,000) dollars. And I further promise to pay interest on said amount, at the monthly rate of two-thirds of one per cent to said San Francisco Savings Union, at its office, without grace, on the sixteenth day of each and every month, till payment of the principal, the first payment to be made the sixteenth day of February, igo^. And I further promise to pay both principal and interest in United States gold coin of the present standard, waiving any right which I may have, now or hereafter, to pay the same in any other currency. And further, I agree that in case of default in the payment of any of the amounts of principal or interest above stipulated, then such amounts shall bear interest from the date of their maturity until the day of papnent, at tire rate of txvo per cent per month ; and all amounts paid thereafter shall be applied, first, to the payment of any interest which may then be due and unpaid, and afterward, the balance thereof to the repayment of the said principal sum. And I further agree that, at any time during such default, the entire unpaid iDalance of said principal sum shall become due and payable, if the holder of this note shall so elect, and shall bear interest at the rate of tzvo per cent per month from the date of maturity of the last paid amount of monthly interest until the whole principal sum and interest shall be paid. This note is secured by a mortgage of even date here- with. No. 475. — Note Given to a Loan Society — Secured by Mort- gage. $1,000. San Francisco, May 20, ipoj. One year after date, without grace, for value received, in gold coin of the United States, I promise to pay to The California ZZ^ New Book of Forms. Sainngs and Loan Society, or order, at its office, in the city and county of San Francisco, California, the sum of one thousand dollars, in gold coin of the United States, of the standard issued from the Mint of the United States during the year 1872, with interest thereon from date until paid, at the rate of one per cent per month ; said interest payable in United States gold coin of the same standard, montJily, in advance; and I agree that in case of default in the payment of the said principal sum, or of any amount of monthly interest, as it shall fall due, that such amounts shall bear interest from the date of their respective maturity until paid, at the rate of two per cent per month, and that if said monthly interest, or any part thereof, is not paid within thirty days after the same becomes due and payable, then the whole of said principal sum and interest shall forthwith be- come due and payable, at the election of the holder of this note. This note is secured by a mortgage bearing even date herewith. No. 476. — ^Note — Instalhnents Given to a Loan Society, Se- cured by Mortgage. $2,^00. San Francisco, May 20, i^o§. For value received, in gold coin of the United States, we prOTn- ise to pay to The California Savings and Loan Society, or order, at its office, in the city and county of San Francisco, state of California, the sum of seven thousand tzvo hundred dollars, in gold coin of the United States of the standard issued from the Mint of the United States during the year 1872, with interest thereon from date until paid, at the rate of nifie-twelfths of one per cent per month, in manner following, that is to say : in sev- enty-two equal installments, of one hundred dollars each, in said gold coin ; the first of said installments to be paid in said gold coin on the twentieth day of June, ipo§, without grace, and a hke installment in said gold coin on the twentieth day of each and every month thereafter, without grace, until the whole of said principal sum of seven thousand two hundred dollars, to- gether with the interest that shall grow due upon the decreasing amounts thereof, as herein specified, shall have been fully paid. And we agree that in case of default of the pa}Tnent of any of said installments, when, by the terms hereof the same shall fall due, that such installments shall bear interest from the date of their respective maturity until paid, at the rate of two per cent per month. And that if any one of said installments is not paid within thirty days after the same becomes due and payable, the whole of the principal sum then remaining unpaid, together with the interest that shall have accrued thereon, shall forthwith become due and payable, at the election of the holder of this note. This note is secured by a mortgage bearing even date herewith. Promissory Notes — Protxst. ^y No. 477. — Promissory Note. ^5^- San Francisco, August 21, ipo§. Sixty (60) days after date, rmthout grace, I promise to pay to R. M., or order, the sum of seven hundred and fifty-six (^36) dollars, payable only in gold coin of the United States, for value received, with interest thereon, in like gold coin, at the rate of two per cent per month from date till paid. No. 478, — Promissory Note, $3^^- San Francisco, January 22, IQO^. Sixty (60) days after date, without grace, I promise to pay to /. P., or order, the sum of three hundred (300) dollars, with in- terest thereon at the rate of one per cent per month, from date until paid. Principal and interest payable only m United States gold coiw; value received. And in the event of a suit to enforce the collection of this fiote, or any portion thereof, I further agree to pay the additional sum of five per cent in like gold coin, upon the amount found due, as attorney fees in said suit. NOTE. — If a promissory note contains the words "or order " it is negotiable, but if omittec^ it is not, If it contains any other contract than a direct promise to pay money, it is not negotiable. The words, "or order," make all others negotiable. The contract to pay attorney's fees makes Form 478 non-negotiable. Therefore, the aforesaid, so- called, promissory note is not strictly a promissory note, though it is a valid contract to pay $300 and interest. This form is in every- day use as a promissory note, and some holders discover it is not when they attempt to pledge it to secure a loan, or assign it before it is due to an innocent holder. If suit is brought upon it the maker may admit its execution and claim the right to offset a debt of the payee to him accruing subsequent to the date of the instrument. If the contract to pay the attorney's fee had been omitted, the offset would not have been allowed. PROTEST. No. 479. — Protest, Notice of. United States of America, State of California. — ss. Sirs : Please take notice that a certain promissory note, dated May J, 1905, for the sum of five thousand dollars, payable thirty days after date, drawn by H. J., in favor of S. W., and indorsed New Forms — 22 338 Nsw Book of Forms. by yon, was this day presented by me, a notary public, te said H. J., the maker of the said note, and payment therefor de- manded, which was refused, and the said promissory note having been dishonored, the same was this day protested by me for the nonpayment thereof, and the holder looks to you for the payment thereof, together with all costs, charges, interest, expenses, and damages already accrued, or that may hereafter accrue thereon by reason of the nonpayment of said promissory note. NOTK — California, a C^ sec 3231. No. 480. — Note Payable at Particular Place — Notices Mailed. UNITED STATES OF AMERICA. State of California, City and County of San Francisco, — ss. On the ^d day of June, in the year of our Lord one thousand nine hundred and four, at the request of The Bank of California, holder of the pro^nissory 'note hereinafter set forth, I, /. M., notary public, duly commissioned and sworn, dwelling in the city and county of San Francisco, did, during business hours of said day, present the original promissory note (a copy of which is indorsed on the reverse of this sheet), at the Bank of Califor- nia, in this city, where the same is made payable, and demanded payment thereof from the paying teller, which he refused, say- ing: "No authority to pay." Whereupon I, the said notary, at the request aforesaid, did protest, and by these presents do publicly protest, as well as against the maker and indorsers as against all others whom it doth or may concern, for exchange, re-exchange, and all costs, damages, and interests, already incurred and to be hereinafter incurred for the nonpayment of the said promissory note. I do hereby certify that on the ^d day of June, A. D. 1904, notice of protest, demand and nonpayment of the above-men- tioned promissory note was served upon A. B. and C, indorsers, by depositing the same in the United States postoMce in said city, postage fully prepaid thereon directed to them respectively as follows: Oakland, California, San Jose, California, such being the reputed places of residence of said respective parties and the postoffices nearest thereto, according to the best information I could obtain. Thus done and protested, in the city and county of San Fran^ Cisco, aforesaid, the days and years above written. [Seal] /. M., Notary Public in and for the City and County of San Francisco, State of California. Protest. 339 No. 481. — Note — Presented to Maker Personally — Notice Served on Indorser Personally or Delivered at Place of Business. UNITED STATES OE AMERICA, State of California, City and County of San Francisco, — ss. On the ?(/ day of June, in the year of our Lord one thousand nine hundred and fii'e, at the request of The Bank of California, holder of the promissory note hereinafter set forth, I, /. M., notary public, duly commissioned, and sworn, dwelling- in the city and county of San Francisco, did, during- business hours of said day, present the original promissory note (a copy of which is indorsed on the reverse of this sheet), to the maker in the city and county of San Francisco, and demanded payment thereof from him persanally, which Ive refused, saying, "I cannot pay this to-day," Whereupon I, the said notary, at the request aforesaid, did protest, and by these presents do publicly protest, as well as against the maker and indorsers as against all others whom it doth or may concern, for exchange, re-exchange, and all costs, damages, and interests already incurred and to be hereinafter inairred for the nonpayment of the said promissory note. I do hereby certify that on the jc? day of Jtme, A. D. igo^, notice of protest, demand and nonpayment of the above-men- tioned promissory note was served upon H. O., indorser, by de- livering the same to him personally in said city. [Or upon D. P., ijidorser, by delivering the same at his place of business. No. 325 Montgomery street, in this city, to a person of discretion, in charge, apparently acting for him.] No. 482. — Maker cannot be Found and has No Kno-wti Place of Business or Residence (Notices Mailed). United States of America, State of California, City and County of San Francisco, — ss. On the 3d day of June, in the year of our Lord one thousand nine hundred and Hve, at the request of The Bank of California, holder of the promissory note hereinafter set forth, I, /. M., notary public, duly commissioned and sworn, dwelling in the city and county of San Francisco, did, during business hours of said day, present the original promissory note Ca. copy of which is indorsed on the reverse of this sheet), to several persons, at several places in said city, and did make due and diligent search and inquiry for the maker to demand payment thereof, but J 340 New Book o? Forms. coidd not find him nor anyone to pay said note. T -was credibly informed that said A. B. di-d not reside here, and had no office or place of business in San Francisco. Whereupon I, the said notary, at the request aforesaid, did protest, and by these presents do publicly protest, as well ?s against the maker and indorsers as against all others whom it doth or may concern, for exchange, re-exchange, and all cosl^, damages, and interests already incurred and to be hereinafter incurred for the nonpayment of the said promissory note. I do hereby certify, that on the 4th day of June, A. D. IQ05, notice of protest, demand, and iionpayment of the above-men- tioned promissory note was served upon A. B. and C, indorsers, by depositing the same in the United States postoffice in this city, postage fully prepaid thereon, directed as follows: At their lest knozvn places of residence, such being the reputed places of residence of said respective parties and the postoffices nearest thereto, according to the best information I could obtain. No. 483. — When Last Place of Residence or Business can be Ascertained, but Maker cannot be Found (Notices Mailed). UNITED) STATES OF AMERICA. State of California, City and County of San Francisco, — ss. On the ^d day of June, in the year one thousand nine hun- dred and five, at the request of The Bank of California, holder of the promissory note hereinafter set forth, /, /. M., notan^ pub- lic, duly commissioned and sworn, dwelling in the city and county of San Francisco, did, during business hours of said day, pre- sent the original promissory note (a copy of which is indorsed on the reverse of this sheet), at No. S7>^^^ California street, in this city, zvhich J was informed was the last reputed place of residence in this city of J. S., the maker, and demanded payment thereof from a person in charge competent to give answers, which he refused, saying, "J. S. formerly lived here, but J do not knozv his present address." Whereupon I, the said notary, at the request aforesaid, did protest, and by these presents do publicly protest, as well as against the maker and indorsers as against all others whom it doth or may concern, for exchange, re-exchange, and all costs, damages, and interests already incurred and to be hereinafter incurred for the nonpayment of the said promissory note. Protest. 341 No. 484.— When Draft is Accepted "Supra Protest" (Notices Mailed). UNITED STATES OP AMERICA. State of California, City and County of San Francisco, — ss. On the 3d day of June, in the year one thousand nine hun- dred and five, at the request of The Bank of California, holder of the bill of exchange hereinafter set forth, I, J. M., notary public, duly commissioned and sworn, dwelling in the city and county of San Francisco, did, during business hours of said day, present the original hill of exchange (a copy of which is indorsed on the reverse of this sheet), at the place of business of A. B. d' Co., the drawers. No. 3763 Maple street, in this city, and demanded accept- ance thereof from a member of the firm, which he refused saying, "No advice." I then presented said draft to C. D., the drawee, in case of need, and demanded acceptance thereof from him, to which he replied, "I will accept this 'supra protest' for the honor of E. F. d: Co., the drawers." Whereupon, I, the said notary, at the request aforesaid, did protest, and by these presents do publicly protest, as well as against the drawer, indorsers, as against all others whom it doth or may concern, for exchange, re-exchange, and all costs, damages and interests, already incurred and to be hereinafter incurred for the nonacceptance of the said bill of exchange. I do hereby certify, that on the 4th day of June, A. D. 1905, notice of protest, demand and nonacceptance of the above-men- tioned bill of exchange was served upon tlie drawers and in- dorsers, hy depositing the same in the United States postoffice in this city, postage fully prepaid thereon, directed to them respect- ively, as follows: E. F. & Co., Hamburg, Germany. C. D. & Co., London, England. A. G. & Co., New York, N. Y. — such being the reputed places of residence of said respective parties, and the postofjices nearest thereto, according to the best information I could obtain. No. 485.— Draft Payable at Sight. San Francisco, Cal., June 3d, 1905. Sir: Please take notice that a certain draft, dated May 3, 1905, for one thousand doUai-s payable at sight, drawn by A. B. on C. D., San Francisco, California, in favor of and indorsed J. D., also indorsed L. M., was this day protested by me for the nonpayment thereof, and the holders look to you for the payment 342 New Book of Forms. thereof, together with all costs, charges, interests, expenses and damages already accrued or that may hereafter accrue thereon by reason of the nonpayment of said draft. To J. D. and L. M. " No. 486.— Master's Protest— Distress of Weather. UNITED STATES OP AMERICA. State of California, City and County of San Francisco, — ss. On the 3d day of June, A. D, 1905, before me, J. M., notary public, duly commissioned for the city and county aforesaid, per- sonally appeared B. E., Master of the Ship. "Bolinas Bay," and J. L., his mate, belonging to the port of Liverpool, England, who sailed from said part, with said vessel on the 7th day of Decem- ber, 1904, with a cargo of coal, bound for the port of Eureka, in the state of California, and arrived at this port of San Francisco on the 3d day of June, 1905, and having experienced heavy weather on the passage, which carried away the fore and maiii- masts of said ship and caused the ship to leak, and fearing dam.age, notes his protest, to be extended, if need be. Subscribed and sworn to. RECEIPTS. No. 487.— Receipts. San Francisco, February 1, 1905. Received from J. D., the sum of one hundred (100) dollars, salary in full for the month of January, 1905, at $100 per month. No. 488.— Receipt. San Francisco, March 1, 1905. Received of R. D. C, one hundred (100) dollars, rent of Water Lots Nos. 9 and 10, on Front street, from March 1, 1905, to April 1, 1905. No. 489. — Receipt in Full for Less than Sum Due. $1000. San Francisco, May 20, 1905. Received of /. B., of the city and county of San Francisco, the sum of one thousand dollars, in full and complete satisfaction of a debt due me from J. B., of the same nlace. Said sum of money; Receipts. 343 now paid me by the said J. B., being less than the true sum due me from him as aforesaid. This instrument is intended as a receipt of a less sum than the whole amount due, and in full discharge of the whole amount due. No. 490. — Receipt in Full of All Demands. $100. San Francisco, May 20, 1905. Received of J. B. one thousand dollars, in full of all demands against him. No. 491. — Receipt on Account. $100. San Francisco, May 30, 1905. Received of J. B. $100, to apply on account. No. 492, — Receipt for Money Paid for Another. $100. San Francisco, May 10, 1905. Received of J. L. $100, in full of all demands against J. L. B. No. 493. — Receipt for a Special Purpose. Received May 31, 1905, from L. S., $100, to pay the account of 0. S. against him. No. 494. — Receipt when Money is Paid by a Third Person. Oakland, May 3, 1905. Received of L. 0., through M. A., $100, in full of all demands against L. 0., up to this date. No. 495. — Receipt of Interest to be Indorsed on a Bond. Received May 3, 1905, of T. C, $100, being the semi-annual interest this day due on the within bond. No. 496. — Receipt in Full for a Special Account. San Jose, May 20, 1905. Received from M. 0., $100, in full of all demands for rent to May 3, 1905. No. 497. — Receipt for Papers in a Case, San Francisco, May 15, 1905. Received of A. B. the following papers: [Description.] 344 New Book of Forms. No. 498. — Receipt for Instrument for Record. Recorder's Office, Sacramento County, Cal. E. H. to G. C. P. Deed. Received the above-entitled instru- ment for record, from G. C. P., February 3, 1905. Returnable only to the party leaving the same or order, $7.50. RELEASE. No. 499. — Release of All Demands. Know all ]\Ien by these Presents: That I, A. H., of the county of Los Angeles, state of Calif oi~nia, for and in considera- tion of the sum of one hundred dollars, gold coin of the United States of America, to me in hand paid by /. L., of the county of Tulare, state aforesaid, have released and forever discharged, and by these presents do, for myself, my heirs, executors, and ad- ministrators, release and forever discharge the said J. L., his heirs, executors, and administrators, of and from all, and all manner of actions and cause of actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, cove- nants, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law or in equity, which against the said J. L. I ever had, or now have, or which I, or my heirs, executors, or administrators hereafter, can, shall, or may have, for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the date of these presents. No. 500. — Release of All Demands — Another Form. Know all Men by these Presents : That I, J. B., of Oakland, Alameda county, California, for and in consideration of the sum of one thousand dollars, to me in hand paid by D. C, of said city, have remised, released, and forever discharged the said D. C. from all claims of every kind, nature, and character whatso- ever against him from the beginning of the world to this day. No. 501. — Release Made in Pursuance of Award. Know all Men by these Presents: That I, N. S., of, etc., in the county of, etc., have remised, released, and forever quit- claimed, and by these presents do remise, release, and forever quitclaim, unto W. A. W., of, etc., in the said county, his heirs, executors, and administrators, from all actions, cause and causes Release. 345 ©f action, judgments, suits, controversies, trespasses, debt, duties, damage, accounts, reckonings, and demands whatsoever, for or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the first day of April last, save and except my right to redeem a certain farm now in mortgage to the said W. A. W., at the time, under the terms, and in the manner prescribed in and by a certain award made the third day of January, in the year 1905, by E. 8., of, etc., on refer- ence to him of all disputes between me and the said W. A. W. In witness, etc. No. 502. — Release by Indenture. This Indenture, made this first day of May, between A. L., of, etc., of the one part, and P. C , of. etc., of the other, witnesseth, that on the date hereof the said P. C and A. L., have each paid to the other the sum of ten dollars, and each of them has canceled and delivered up to the other certain covenants, bonds, notes of hand, and written contracts, upon which each of the parties claimed and pretended to have divers claims and demands on the other ; the said claims and contracts so canceled and delivered up being supposed and intended to be all the claims and evidence of claim by each of the parties hereto on the other. And, in con- sideration thereof, each of them, the said P. C. and A. L., does hereby for himself and his legal representatives release and ab- solutely and forever discharge the other of and from all claims and demands, actions and causes of action, of every name and nature, so that neither of them shall have any claim on the other, directly or indirectly, on any contract or supposed liabil- ity or thing undertaken, done, or admitted to be done, from the beginning of the world to this day. In witness, etc. No. 503. — Release to a Guardian. Know all Men by these Presents, etc., that A. P., etc., son and heir of L. P., deceased, now over twenty-one years old. hath remised, released, and forever quitclaimed, and by these presents doth remise, etc., unto A. B., of S. F., his guardian, all and all manner of action, actions, suits, reckonings, accounts, debts, dues and demands whatsoever, which he, the said A. P., ever had. now hath, or which he, his executors or administrators, at any time hereafter can or may have, claim, or demand, against the said A. B., his executors or administrators, for, touching, and concern- ing the management and disposition of any of the lands, tene- ments and hereditaments of the said A. P., situate, etc., or any part thereof, or for or by reason of any moneys, rents, or profits, by him received out of the same, or any payments made thereout, 346 New Book of Forms. during the minority of tlie said A. P., or by reason of any matter, cause, or thing whatsoever, relating thereto, from the beginning of the world to the day of the date hereof. No. 504. — Release of Proviso or Condition. Know all I\[en by these Presents, etc., that I, 0. L., of 0., for divers good considerations me hereunto moving, have remised, released, and quitclaimed and by these presents, for me, my exec- utors, administrators and assigns, do, etc., unto L. S., of S., his heirs, executors, administrators and assigns, as well one proviso or condition, and all and every the sum and sums of money specified in the same proviso or condition, contained or comprised in one pair of indentures, of, etc., bearing date, etc., made between me, the said L. S., of the one part, and the said 0. L., of the other part, and also all and all manner of actions and suits, cause and causes of action and suits, for or concerning the said proviso or condition. No. 505. — Release of Legacy. Know all Men by these Presents : That whereas, W. B., of S. F., in the county of 8. F., and state of C, by his last will and testament, in writing, bearing date the first day of April, 1905, did, among other legacies therein contained, give and bequeath unto me the sum or legacy of ten dollars, and of his said will and testament did make and constitute 0. T. the sole executor. Now, therefore, I hereby acknowledge the receipt from the said execu- tor, as aforesaid, of the said sum or legacy of ten dollars, so given and bequeathed to me aforesaid, and to acquit, release, and dis- charge the said 0. T. of and from all legacies, dues and demands whatsoever, under, or by virtue of the said last will and testa- ment, or against or out of the estate of the said W. B. No. 506. — Release of a Trust. Whereas, by indenture bearing date, June 1, 1905, made be- tween, etc. [here recite the deed], in which said indenture the said 0. P. doth hereby declare that his name was only used in trust, for the benefit and behoof of A. Z.: Now, know ye, that I, the said 0. P., in discharge of the trust reposed in me, at the request of the said A. Z., have remised, re- leased, and surrendered, assigned and set over, and by these pres- ents, for me, my executors and administrators, do freely and ab- solutely remise, etc., unto the said A. Z., his executors, etc., all the estate, right, title, interest, use, benefit, privilege and demand whatsoever, which I, the said 0. P., have, or may have, or claim of or to the said premises, or of and in any sum of money or otlier Kelease. 347 matter or thing whatsoever, in the said indenture contained, men- tioned, and expn^ssed; so that neither /, the said 0. P., my exec- utors or administrators, or any of us, at any time hereafter, shall or will ask, claim, challenge or demand, any interest, etc., or other thing, in any manner whatsoever, by reason or means of tlie said indenture or any covenant therein contained, but thereof and therefrom, and from all actions, suits and demands, which I, ray executors, administrators or assigns, may have concerning the same, shall be utterly excluded and forever debarred by these presents. No. 507. — Release by a Legatee upon His Coming of Age. Know all Men by these Presents : That whereas, A. S., of S., made his last will and testament in writing, bearing date third day of June, 1905, and, among other legacies therein contained, did give and bequeath unto me, T. S., of ^S^., his son, the annual sum of $1,000, to be paid to me quarterh', until I should attain the age of one and twenty years; and of his will constituted 0. S. and P. C. joint executors, as in and by the said will may ap- pear ; and whereas, the said 0. S. and P. G. did jointly accept of the said executorship, and trust, and I, the said T. S., have at- tained my said age of twenty-one years; and whereas, the said 0. 8. and P. C. have made up an account with me, the said T. S., of all moneys received and paid by the said S. and C, and all transactions in pursuance of the said executorship and trust, and have not only paid me the balance of such accounts, but also de- livered unto me all the writing and papers belonging to the estate of the said deceased : Now, know ye, that I, the said T. S., being fully satisfied in the premises, have remised, released, and forever quitclaimed, and by these presents do remise, release, and forever quitclaim unto the said 0. S. and P. C, and each of them, their and each of their executors and administrators, all reckonings and accounts, sum and sums of money by them had and received in pursuance of the said trust, or by means of their being executors to the said A. S., as aforesaid ; and also of and from all other reckonings, ac- counts, and demands whatsoever, from the beginning of the world to the day of the date of these presents. No. 508. — Release of Lien on Land by a Judgment Creditor. [Title of Court and Cause.] Judgment rendered the third day of May, 1905, in the superior court of the county of Alameda, against said J . B., and in favor of said /. S., for the sura of one thousand dollars damages, and ten dollars, costs of suit. 348 New Book of Forms. In consideration of one thousand dollars, to me in hand paid, the receipt whereof is acknowledged, I do hereby remise, release, and discharge the following described land and premises, to wit [descripti&n of the py^eniises], from all claim to or interest in the same, or any part thereof, which I may have under and by virtue of the above-mentioned judgment, and from all lien or encum- brance that has attached to the same by reason of the recovery of the said judgment, as free and clear, in all respects, as though said judgment had not been rendered. No. 509. — Release, Partial, of Mortgage. This Indenture, made the nineteenth day of December, 1906, between T. H., of the city of New York, of the first part, and W. L. L., of the city of San Francisco, of the second part: Whereas, said party of the second part, by indenture of mort- gage, bearing date the fifteenth day of Septemher, 1905, and re- corded in the office of the county recorder of the city and county of San Francisco, in liher No. 52, of Mortgages, at page 129. Sep- tember, 18, 1905, did, for the consideration and for the purpose therein mentioned, mortgage the premises therein described. And whereas, the said party of the second part has on the day of the date of these presents, paid to the said party of the first part the sum of eighteen hundred dollars, gold coin, of the United States, part of the money secured by the mortgage aforesaid, as therein specified. Now, therefore, this indenture witnesseth : That the said T. E., party of the firet part, in consideration of the premises and the said sum of eighteen hundred dollars, duly paid to the said party of the first part by the said party of the second part, at the time of the ensealing and delivery of these presents, the receipt where- of is hereby acknowledged, does by these presents grant, release, quitclaim, and set over unto the said party of the second part, his heirs and assigns, all that part of the said mortgaged lands, bounded and described as follows, to wit: [Description.] Together with all and singular, the tenements, hereditaments and appurtenances thereto belonging or in any wise appertain- ing; and all the lien, right, title and interest of the said party of the first part, of, in and to the same, to the intent that the lands hereby conveyed and released shall forever be discharged from the said mortgage, and that the rest of the lands in the said mortgage specified may remain to the said party of the first part, as heretofore. To have and to hold the lands and premises hereby conveyed and released, to the said party of the second part, his heirs and assigns forever. Release — Will. 349 No. 510. — Release or Satisfaction of Judgment. [Title of Court and Cause.] For and in consideration of the sum of eight hundred dollars, gold coin, of the United States, to me paid by R. R., the defendant in the above-entitled action, full satisfaction is hereby acknowl- edged of a certain judgment rendered and entered in said superior court in the said action, on the tenth day of September, 1905, in favor of J. D., the plaintiff in the said action, and against the said defendant, for the sum of seven hundred and fifty dollars, gold coin of the United States, with interest thereon from the tenth day of September, 1906, at the rate of seven per cent per annum, until paid, together with said plaintiff's costs and dis- bursements, amounting to the sum of forty-five dollars, and re- corded in book D of Judgments, at page 432. And I hereby au- thorize and direct the clerk of said court to enter satisfaction of record of said judgment in the said action. No. 511. — Release of Mortgage. Know all Men by these Presents: That I, J. M. C, of Columbia, Tuolumne county, state of California, do hereby cer- tify and declare that a certain mortgage bearing date the fourth day of March, 1905, made and executed by J. 8., of said county, the party of the first part therein, to J. H. McK. of said county, the party of the second part therein, and assigned to me on the third duy of April, 1906, by the said J. H. McK., and recorded in the office of the county recorder of the said county of Tuol- umne, in book 5 of Mortgages, on pages 24 and 25, on the sixth day of March, 1905, together with the debt thereby secured, is fully paid, satisfied, and discharged. WILL. What Passes by. — Property of every description mav be ac- quired by will: Cal. C. C, sec. 1000. The word "will" included codicil": Id., see. 14. < ( Demented Person's Will. — Any person may make a will and until it is established by a court's judgment that he was not of sound mind when it was made, the law presumes that his mind was always sound. The statute provides that "a person of unsound mind may make a will before but not after his in- capacity has been judicially determined." 350 New Book of Forms. NOTE. — California, C. C, sec. 40; Alaska Codes, pt. 5, c. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Idaho, C. C, sec. 19SS; Montana, C. C, sec. 23; New Mexico, Corap. Laws, sees. 1S46-2020; North Dakota, C. C, sees. 3649-3683; South Dakota, C. C, sees. 998-1035, What Passes by. — Future interests pass by will, and succes- sion and transfer in the same manner as present interests. NOTE. — California, C. C, sec. 699; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Arizona, C. C, par. 727; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Idaho, C. C, sec. 2353; Montana, C. C, sec. 1120; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649- 3683; South Dakota, C. C, sees. 998-1035. Liability of Devisee. — A person acquiring property by will is liable to the extent of the land acquired upon any covenant or agreement in reference to the title of or to the property made by his devisor, to the extent, of the land in question. NOTE. — California, C. C, sec. 1115; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Mon- tana, C. C, sec. 1521; Nevada, Comp. Laws, sec. 2687; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649-3683; South Dakota, C. C, sees. 998-1035. Gifts in View of Death. — As to gifts in view of death, they are not affected by a previous will, nor by a subsequent will, un- less the will expresses an intention to revoke the gift. NOTE. — California, C. C, see. 1152; Alaska Codes, pt. 5, e. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4662-4G90, vol. 3, p. 1293; Mon- tana, C. C, sec. 1555; North Dakota, C. C, sees. 3649-3683; South Da- kota, C. C, sees. 998-1035. Who may Make. — Every person over the age of eighteen years, of sound mind, may, by will, dispose of all his estate, being chargeable in both cases with the payment of all his debts. NOTE. — California, C. C, sec. 1270; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Arizona, C. C, par. 4212; Colorado, Mill's Stats., sees. 4662- 4690, vol. 3, p. 1293; Idaho, C. C, sec. 2503; Montana, C. C, sec. 1720; Nevada, Comp. Laws, sec. 3071; New Mexico, Comp. Laws, sees. 1946- 2020; North Dakota, C. C, sees. 3G49-3683; Oregon, Codes and Statutes, sees. 5545, 5546; South Dakota, C. Co., sees. 198-1035; Utah, Rev. Stats., sec. 2731; Washington, Ballingcr's Codes, sec. 4594; Wyoming, Rev. Stats., sec. 4565. Duress, Menace, Fraud. — A will procured by duress, menace, fraud or undue influence is void; and a revocation, procured by the same means, is void. WiLI. 351 NOTE.— California, C. C, sec. 1272; C. C. P., sec. 1312; .Maska, Codes, pt. 5, c. 15, sees. 137-167; Colorado. Mill's Stats., sees. 4662^690; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C^ sees. 3649- 3683; South Dakota, C. C, sec. 1000. By Married Woman. — A married woman may dispose of all her separate estate by will, without the consent of her hus- band, and may alter or revoke the will in like manner. Her will must be executed and proved in like manner as other wills. NOTE.— California, C. C, soc. 1273; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Arizona. C. C, par. 4229; Colorado, Mill's Stats., sees. 4662- 4690, vol. 3, p. 1293; Idaho, (J. C, sec. 2504; Montana, C. C, sec. 255; Nevada, Comp. Laws, sec 3071; New Mexico, Comp. Laws, sees. 1946- t020; North Dakota, C. C, sees. 3649-36S3; Oregon, Codes and Statutes, Be*. 5547; South Dakota, C. C, sees. 198-1035; Wyoming, Rev. Stats.^ sec 2975. Who may Take Under. — A testamentary disposition may be made to any person capable by law of taking the property so disposed of, except corporations other than those formed for scientific, literary or solely educational purposes. NOTE. — California, C. C, sec. 1275; Alaska, Codes, pt 5, c 15, sees. 137-167; Colorado. Mill's Stats., sees. 4662^690, vol. 3, p. 1293; Montana, C. C, sec. 1722; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649-3683; South Dakota, C. C, sees. 198-1035; Utah, Eev. Stats., sec 2734. Must be Written — Except — Execution of. — Every will, other than a nuncupative will, must be in writing; and every will, other than a holographic will and a nuncupative will, must be executed and attested as follows: i. It must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name there- to; 2. The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them, to have been made by him or by his authority; 3. The testator must, at the time of subscribing or acknowledging the same, de- clare to the attesting witnesses that the instrument is his will; and, 4. There must be two attesting witnesses, each of whom' must sign his name as a witness at the end of the will, at the testator's request, and in his presence. NOTE.— California, C. C, sec. 1276; Alaska, Codes, pt. 5, c 15 sees 137-167; Arizona, C. C, par. 4214; Colorado, Mill's Stats., sees '466"- 4690. vol. 3, p. 1293; Idaho, C. C. sec. 2505; Montana, C. C. sec'. 1723; Nevada, Comp. Laws, see. 3072; New Mexico, Comp. Laws, sees 1946^ 2020; North Dakota, C. C, sees. 3649-3683; Oregon, Codes and Statutes sec. 5548; South Dakota, C. C, sees. 998-1035; Washing^n, BaUincer's Codes, sec. 4596; Wyoming, Rev. Stats., sec. 4568. 352 New Book of Forms. Holographic. — A holographic will is one that is entirely written, dated and sig-ned by the hand of the testator himself. It is subject to no other form, and may be made in or out of this state, and need not be witnessed. NOTE. — California, C. C, sec. 1277; Arirona, C. C. par. 421.5; Idaho, C. C, sec. 2506; Montana, C. C, sec. 1724; Ne\rada, Comp. Laws, sees. 2092, 3093; Utah, Rev. Stats., sec. 2376. A witness to a written will must write, with his name, his place of residence : and a person who subscribes the testator's name, by his direction, must write his own name as a witness to the will. But a violation of this does not affect the validity of the will. NOTE. — California, C. C, se«. 1278; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Colorado. Mill's Stats., sees. 4662-4690. vol. 3, p. 1293; Idaho, C. C, sec. 2507; Montana, C. C, see. 1725; New Mexico, Comp. Laws, sees. 1946-2020: North Dakota, C. C, sees. 3649-3683; Ore^n, Codes and Stat- utes, sec. 5548; South Dakota, C. C, sees. 998-1035; Utah, Rev. Stats., sec. 2737; Washington, Ballinger's Codes, see. 4596. Mutual or Conjoint. — A conjoint or mutual will is valid, but it mav be revoked by any of the testators, in like manner with any other will. NOTE. — California. C. C, Pee. 1279; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Colorado. Mill's Stats., sees. 4290-4663, vol. 3, p. 1293; Mon- tana, C. C, sec. 1726; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649-3683; South Dakota, C. C, sees. 998-1035; UtaJi, Eev. Stats., see. 2738. Who may Witness. — If the subscribing witnesses to a will are competent at the time of attesting its execution, their sub- sequent incompetency, from whatever cause it may arise, does not prevent the probate and allowance of the will, if it is other- vnse satisfactorily proved. NOTE. — California, C. C, see. 1280; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4290-4562, vol. 3, p. 1293; Idaho, C. C, sec. 2508; Montana, C. C., sec. 1727; New Mexico, Comp. Laws, Bees. 1946-2020; North Dakota, C. C, sees. 3649-3683; South Dakota, C. C, sees. 998-1038; Utah, Eev. Stats., see. 2739; Wyoming, Bev. Stats., sec. 4568. Gift to Witness. — All beneficial devises, legacies, and gifts made or given to a subscribing witness are void, unless there are two other competent subscribing witnesses. NOTE. — California, C. C, sec. 1282; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4290-4662, vol. 3, p. 1293; Montana, Will. 353 C. C, soc. 1729; Nevada, Comp. Laws, see. 3074; N^w Mexi<^, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649-3683; South Da- kota, C. C^ sees. 998-1035; Utah, Rev. Stats., sec. 2742; Washington^ BaJlinger's Codes, sec. 4607. Witness may Take as Heir at Law, When. — If a witness, to whom any beneficial devise, le.s^acy or gift, void by the pre- ceding section, is made, would have been entitled to any share of the estate of the testator, in case the will should not be estab- lished, he succeeds to so much of the share as would be dis- tributed to him not exceeding the devise or bequest made to hirri in the will, and he may recover the sime of the other devisees or legatees named in the will, in proportion to and out of the parts devised or bequeathed to them. NOTE.— California, C. C, sec. 1283; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Arizona, C. C. par. 4227; Colorado, Mill's Stats., sees. 4290- 4662, vol. 3, p. 1293; Montana. C. C, sec. 1730; New Mexico. Comp, Laws, sees. 1946-2020; North Dakota. C. C, sees. 3649-3683; Oregon, Codes and Statutes, sec. 5565; South Dakota, C. C, sees. 998-1035; Utah, Rev. Stats., sec. 2743; Washington, Ballinger's Codes, sec. 4607. Foreign Wills. — A will made out of this state is valid as a will in this state, if executed according to the provisions of the laws of California, or according to the laws of the domicile of the maker. NOTE.— California. C. C. P., sec. 1322; C. C, sec. 1285; Alaska. Codes, pt. 5. e. 15. sees. 137-167; Colorado. Mill's Stats., sees. 4290-4662. vol. 3, p. 1300; Montana, C. C, sec. 1731; New Mexico, Comp. Laws. sees. 1946- 2020; North Dakota, C. C, sec. 3652; Oregon. Codes and Statutes, sec. 5561; South Dakota, C. C, sees. 998-1035; Utah, Rev. Stats., sec. 2744. Codicil — Effect on Will. — The execution of a codicil, re- ferring to a previous will, has the effect to republish the will, as modified by the codicil. NOTE.— California. C. C. sec. 1287; Alaska. Codes, pt. 5, c. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4290-4662, vol. 3, p. 1293; Mon- tana, C. C, sec. 1733; New Mexico. Comp. Laws. sees. 1946-2020; North Dakota. C. C, sees. 3649-3680; South Dakota, C. C, sees. 998-1035; Utah, Rev. Stats., see. 2745. Wills may be Oral, When. — A nuncupative will is not re- quired to be in writing, nor to be declared or attested with any formalities. To make a nuncupative will valid, and to entitle it to be admitted to probate, the following requisites must be observed: i. The estate bequeathed must not exceed in value the sum of one thousand dollars ; 2. It must be proved by two witnesses who were present at the making thereof, one of whom New Forms — 23 354 New Book of Forms. was asked by the testator, at the time, to bear witness that such was his will, or to that effect; 3. The decedent must, at the time, have been in actual military service in the field, or doing duty on shipboard at sea, and in either case in actual contem- plation, fear or peril of death ; or the decedent must have been, at the time, in expectation of immediate death from an injury received the same day. No proof must be received of any nuncupative will, unless it is offered within six months after speaking the testamentary words, nor unless the words, or the substance thereof, were re- duced to writing within thirty days after they were spoken. NOTE. — California, C. C, sees. 1288-1290; C. C. P., see. 1344; Alaska, Codes, pt. 5, c. 15. sees. 137-lfi7: Arizona, C. C, pars. 4217, 4219, 4221; Colorado. Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Montana, C. C, sees. 1734. 173.5; Nevada, Comp. Laws, sec. 3075; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C. sees. 3649-3683; Oregon, Codes and Statutes, see. 5.5.58; South Dakota. C. C, sees. 998-1035; Utah, Eev. Stats., sees. 2746, 2747; Washington, Ballinger's Codes, see. 4605; Wyoming, Eev. Stats., see. 4598. Probate of Oral Wills. — Probate of a nuncupative will must be granted for fourteen days after the death of the testator, nor must any nuncupative will be at any time proved, unless the testamentary words, or the substance thereof, be first committed to writing, and process issued to call in the widow, or other persons interested, to contest the probate of such will, if they think proper: C. C. P., sec. 1345. NOTE.— California, C. C. P., see. 1345; C. C, sec. 1201; Alaska. Codes, pt. 5, e. 1.5, sees. 137-167; Arizona, C. C, pars. 1634-4219; Colorado, Mill's Stats., sees. 4662-4690, vol. 3. p. 1283: Idaho. C. C. sec. 4029; Mon- tana, C. C. P., see. 2381; New Mexico, Comp. Laws, sees. 1946-1950; North Dakota, C. C, sees. 3649-3683; South Dakota, C. C, sees. 998-1035; Wyoming, Eev. Stats., sec. 4599. Revocation of Written, — No written will, nor any part thereof, can be revoked or altered otherwise than: i. By a writ- ten will, or other writing of the testator, declaring such revoca- tion or alteration, and executed with the same formalities with which a will should be executed bv such testator ; or 2. Bv beine burned, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator him- self, or by some person in his presence and by his direction. NOTE.— California, C. C, see. 1292; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Arizona, C. C, par. 4216; Colorado, Mill's Stats., sees. 4662- 4690, vol. 3, p. 1293; Idaho, C. C, see. 2509; Montana, C. C, sec. 1738; Nevada, Comp. Laws, sec. 3078; New Mexico, Comp. Laws, sees. 1946- 2020; North Dakota, C. C, sees. 3649-3683; Oregon, Codes and Stat- utes, sec. 792; South Dakota, C. C, sees. 998-1035; Utah, Eev. Stats^ »ec. 2749; Washington, Ballinger's Codes, sec. 4569. Will. 355 Destruction of Proved. — When a will is canceled or de- stroyed by any other person than the testator, the direction of the testator and the fact of such injury or destniction must be proved by two witnesses. NOTE.— California, C. C, sec. 1293; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4662-4690; vol. 3, p. 1293; Idaho, C. C, sec. 2510; Montana, C. C, sec. 1738; New Mexico. Comp. Laws] sees. 1946-2020; North Dakota, C. C, sees. 3649-3GS3; South Dakota, C. C, sees. 998-1035; Utah, Rev. Stats., sec. 2750. Duplicate Revoked. — The revocation of a will, executed in duplicate, may be made by revoking one of the duplicates. NOTE.— California, C. C, sec. 1295; Alaska, Codes, pt. 5, c. 15. sees. 137-167; Colorado, Mill's Stats., sees. 4662-4690. vol. 3. p. 1293; Idaho, C. C, sec. 2512; Montana, C. C, sec. 1740; New Mexico, Comp. Laws, sees! 1946-2020; North Dakota, C. C, sees. 3649-3683; South Dakota, C. C, sees. 998-1035; Utah, Eev. Stats., sec. 2751. Effect of Subsequent, Upon Prior. — A prior will is not re- voked by a subsequent will, unless the latter contains an express revocation, or provisions wholly inconsistent with the terms of the former will ; but in other cases the prior will remains effectual so far as consistent with the provisions of the subsequent will. NOTE.— California. C. C, sec. 1296; Alaska. Codes, pt. 5, c. 15, sees 137-167; Colorado. Mill's Stats., sees. 4662-4690, vol. 3. p. 1293; Mon- tana, C. C, sec. 1741; New Mexico, Comp. Laws, sees. 1946-2020 •' North Dakota, C. C, sees. 3649-3683; South Dakota, C. C, sees. 998-1035- Utah, Rev. Stats., see. 2756. A Second Will Revives the First When. — If, after making a will, the testator makes and executes a second will, the de- struction, cancellation or revocation of such second will does not revive the first will, unless it appears by the terms of such revocation that it was the intention to revive and give effect to the first will, or unless, after such destruction, cancellation or revocation, the first will is duly republished. NOTE.— California, C. C, sec. 1^97; Alaska, Codes, pt. 5, c 15 sees 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Idaho' C. C, sec. 2512; Montana, C. C, sec. 1742; Nevada, Conip.Laws, sec' 3079; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649-3683; Oregon, Codes and Statutes, sec. 5557; South Dakota) C. C, sees. 998-1035; Utah, Rev. Stats., sec. 2753; Washington, Ballin- ger's Codes, sec. 4604. Revocation by Marriage as to Issue of. — If, after having made a will, the testator marries, and has issue of such mar- riage, born either in his lifetime or after his death, and the wife 356 New Book of Forms. or issue sun-ives him, the will is revoked, unless provision has been made for such issue by some settlement, or unless such issue are provided for in the will, or in such way mentioned therein as to show an intention not to make such provision ; and no other evidence to rebut the presumption of such revoca- tion can be received. NOTE.— California, C. C, sec. 1298; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1298; Idaho, ( C, sec. 2513; Montana, C. C, sec. 1743; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649-3683; Oregon, Codes and Statutes, sec. 5550; South Dakota, C. C, sees. 998-1035. Revocation of by Marriage. — If, after making a will, the testator marries, and the wife survives the testator, the will is revoked, unless provision has been made for her by marriage contract, or unless she is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision ; and no other evidence to rebut the presumption of revocation must be received. NOTE. — California, C. C, see. 1299; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Idaho, C. C, see. 2514; Montana, C. C, see. 1744; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649-3683; South Dakota, C. C, sees. 998-1035; Utah, Eev. Stats., sec. 2754. Unmarried Woman's Will. — A will executed by an unmar ried woman is revoked by her subsequent marriage, and is not revived by the death of her husband. NOTE.— California, C. C, sec. 1300; Alaska, Codes, pt. 5, e. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Idaho, C. C, sec. 2515; Montana, C. C, sec. 1745; Nevada, Comp. Laws, sees. 3080, 3081; North Dakota, C. C, sees. 3649-3683; Oregon, Codes and Statutes, sec. 5551; South Dakota, C. C, sees. 998-1035; Washington, Ballinger's Codes, sec. 4598. Contracts to Convey not Canceled by Deaths. — An agree- ment made by a testator, for the sale or transfer of property dis- posed of by a will previously made, does not revoke such dis- posal ; but the property passes by the will, subject to the same remedies on the testator's agreement, for a specific performance or otherwise against the devisees or legatees, as might be had against the testator's successors, if the same had passed by suc- cession. NOTE. — California, C. C, sec. 1301; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; New- Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649- 3683; South Dakota, C. C, sees. 998-1035. Wai.. 357 Encumbrance not a Revocation. — A charge or encumbrance upon any estate, for the purpose of securing the payment of money or the performance of any covenant or agreement, is not a revocation of any will relating to the same estate which was previously executed ; but the devise and legacies therein con- tained must pass, subject to such charge or encumbrance. NOTE. — California, C. C, sec. 1302; Alaska, Codes, pt. 5, c. lo, sees. 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Idaho, C. C, sec. 2517; Montana, C. C, sec. 1747; Nevada, Comp. Laws, sec. 3083; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649-3683; Oregon, Codes and Statutes, sec. 555.^: South Dakota, C. C, sees. 998-1035; Utah, Eev. Stats., sec. 2756; Washington, Ballinger's Codes, sec. 4600. Conveyance — Effect of Will on. — A conveyance, settle- ment, or other act of a testator, by which his interest in a thing previously disposed of by his will is altered, but not wholly devested, is not a revocation ; but the will passes the property which would otherwise devolve by succession. NOTE. — California, C. C, sec. 1303; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Idaho, 0. C, sec. 2518; Montana, C. CL, sec. 1746; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649-3683; South Dakota, C. C, sees. 998-1035; Utah, Eev. Stats., sec. 2755. Will Revoked Kills Codicil — The revocation of a will re- vokes all its codicils. NOTE. — California, C, C, sec. 1305; Alaska, Codes, pt. 5, c. 15. sees. 137-167; Colorado, Mill's Stata., sees. 4662-4690, vol. 3, p. 1293; Idaho, C. C, see. 2520; Montana, C. C, see. 1750; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649-3683; South Dakota, a a, sees. 998-1035; Utah, Eev. Stats., sec. 2759. Revocation a Question of Law and Fact. — If the instru- ment by which an alteration is made in the testator's interest in a thing previously disposed of by his will expresses his intent that it shall be a revocation, or if it contains provisions wholly inconsistent with the tenns and nature of the testamentary dis- position, it operates as a revocation thereof, unless such incon- sistent provisions depend on a condition or contingency by reason of which they do not take eflfect. NOTE. — California, C. C, sec. 1304; Alaska, Codes, pt. 5, e. 15, sees. 137-167; Colorado, Mill's Stata., sees. 4662-4690, vol. 3, p. 1293; Idaho', C. C, sec. 2519; Montana, C. C., sec. 1749; New Mexico, Comp. Laws,' Bees. 1946-2020; North Dakota, C. C, sees. 3649-3683; South Dakota^ aC^ sees. 998-1035; Utah, Eev. Stats., sec. 2758. 358 New Book of Forms. Children Born After Date of. — AVhenever a testator has a child born after the making of his will, either in his lifetime or after his death, and dies leaving such child unprovided for by any settlement, and neither provided for nor in any way men- tioned in his will, the child succeeds to the same portion of the testator's real and personal property that he would have suc- ceeded to if the testator had died intestate. NOTE.— California, C. C, sec. 1306; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Arizona, C. C, pars. 4222-4225; Colorado. Mill's Stats., sees, 4662-4690, vol. 3, p. 1293; Idaho, C. C, sec. 2521; Montana, C. C, sec. 1751; Nevada, Comp. Laws, sec. 3084; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649-3680; South Dakota, C. C, sees. 998-1035; Utah, Eev. Stats., see. 2760; Wyoming, Rev. Stats., see. 4859. Children Omitted from. — When any testator omits to pro- vide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was inten- tional, such child, or the issue of such child, must have the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section. NOTE. — California, C. C, sec. 1307; Alaska, Codes, pt. 5, c. 15, sees, 137-167; Arizona, C. C, par. 4226; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Idaho, C. C, sec. 2522; Montana, C. C, sec. 1752; Nevada, Comp. Laws, sec. 3085; New Mexico, Comp. Laws, sees. 1946- 2020; North Dakota, C. C, sees. 3649-3683; Oregon, Codes and Statutes, sec. 5554; South Dakota, C. C, sees. 998-1035; Utah, Eev. Stats., sec. 2767; Washington, Ballinger's Codes, sec. 4601. Omitted Child — Intention Governs. — When any share of the estate of a testator is assigned to a child born after the mak- ing of a will, or to a child, or the issue of a child, omitted in the will, as hereinbefore mentioned, the same must first be taken from the estate not disposed of by the will, if any ; if that is not sufficient, so much as may be necessary must be taken from all the devisees or legatees, in proportion to the value they may re- spectively receive under the will, unless the obvious intention of the testator in relation to some specific devise or bequest, or other provision in the will, would thereby be defeated ; in sucli case, such specific devise, legacy, or provision may be exempted from such apportionment, and a different apportionment, con- sistent with the intention of the testator, may be adopted. NOTE. — California, C. C, sec. 1308; Alaska, Codes, pt. 5, c. 15, sees. 337-167; Arizona, C. C, par. 4226; Colorado, Mill's Stats., sees. 4662- 4690, vol. 3, p. 1293; Idaho, C. C, sec. 2523; Montana, C. C, sec. 1756; Nevada, Comp. Laws, fee. 3086; New Mexico, Comp. Laws, sees. 1946- 2020; North Dakota, C. C, sees. 3649-3683; South Dakota, C. C, sees. 998-1035; Utah, Rev. Stats,, sec. 2762. Wii^L. 359 Children Provided for in Lifetime. — If such children, or their descendants, so unprovided for, had an equal proportion of the testator's estate bestowed on them in the testator's life- time, by way of advancement, they take nothing in virtue of the provisions of the three preceding sections. NOTE. — California, C. C, sec. 1309; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4-662-4690, vol. 3, p. 1290; Idaho, C. C, sec. 2524; Montana, C. C, sec. 1754; Nevada, Comp. Laws, sec. 3087; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649-3683; Oregon, Codes and Statutes, sec. 5.555; South Dakota, C. C, sees. 998-1635; Utah, Eev. Stats., sec. 2763; Washington, Ballin- ger's Codes, sec. 4G02. Death of Devisee Prior to Devisor, — When any estate is devised to any child, or other relation of the testator, and the devisee dies before the testator, leaving lijieal descendants, such descendants take the estate so given by the will, in the same man- ner as the devisee would have done had he survived the testator. NOTE. — California, C. C, sec. 1310; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Idaho, C. C, sec. 2525; Montana, C. C, sec. 1755; Nevada, Comp. Laws, see. 3088; New Mexico, Comp. Laws, sees. 1944-2020; North Dakota, C. C, sees. 3649-3683; Oregon, Codes and Statutes, sec. 5556; South Dakota, C. C, sees. 998-1035; Utah, Eev. Stats., sec. 2764; Washington, Bal- linger's Codes, sec. 4603. What Passes by. — Every devise of land in any will conveys all tlie estate of the devisor therein which he could lawfully de- vise, unless it clearly appears by the will that he intended to convey a less estate. NOTE. — California, C. C, sec. 1311; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Idaho, C. C, sec. 2526; Montana, C. C., sec. 1756; Nevada, Comp. Laws, sec. 3089; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649-3683; South Dakota, C. C, sees. 998-1035; Utah, Eev. Stats., sec. 2765; Washington, Ballinger's Codes, sec 4608; Wyoming, Eev. Stats., sec. 4566. After-acquired Lands Pass by. — Any estate, right or inter- est in lands acquired by the testator after the making of his will passes thereby and m like manner as if title thereto was vested in him at the time of making the will, unless the contrary mani- festly appears by the will to have been the intention of the tes- tator. Every will made in express terms devising, or in any other terms denoting the intent of the testator to devise all the real estate of such testator, passes all the real estate which such testator was entitled to devise at the time of his decease. 360 New Book of Forms. NOTE.— California, C. C, see. 1312; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Idaho, O. C, sec. 2527; Montana, C. C, sec. 1757; Nevada, Comp. Laws, sec. 3090; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees 3649-3683; Oregon, Codes and Statutes, sec. 2573; South Dakota, C. C, sees. 998-1035; Utah, Rev. Stats., see. 2766; Wyoming, Rev. Stats., sec. 4657. Devises in Trust, etc. — No estate, real or personal, may- be bequeathed or devised to any charitable or benevolent society, or corporation, or to any person or persons in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease of the testator; and if so made, at least thirty days prior to such death, such devise or legacy, and each of them, shall be valid ; provided, that no such devises or bequests shall collectively exceed one-third of the estate of the testator leaving legal heirs, and in such case a pro rata re- duction from such devises or bequests shall be made so as to reduce the aggregate thereof to one-third of such estate; and all dispositions of property made contrary hereto shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law. NOTE. — California, C. C, see. 1313; Alaska, Codes, pt. 5, e. 15, sees, 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Idaho, C. C, sec. 2528; Montana, C. C, sees. 1758, 1759; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649-3683. All Children Share Alike. — A child conceived before, but not born until after, a testator's death, takes the same as if he was alive at his parent's death. NOTE. — California, C. C, sec. 1339; Alaska, Codes, pt. 5, e. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Mon- tana, C. C, sec. 1792; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, sees. 3649-3683; South Dakota, C. C, sees. 998-1035; Utah, Rev. Stats., see. 2789. Words of Donation — What are. — A testamentary disposi- tion to "heirs," "relations," "nearest relations," "representatives," "legal representatives" or "personal representatives," or "fam- ily," "issue," "descendants," "nearest," or "next of kin," of any person, without other words of qualification, and when the terms are used as words of donation, and not of limitation, vests the property in those who would be entitled to succeed to the prop- erty of such persons. NOTE. — California, C. C, sec. 1334; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4602-4690, vol. 3, p. 1293; Idaho, C. C, see. 2519; Montana, C. C, see. 2758; Nevada, Comp. Laws, sec. 1749; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, C. C, gees.' 3649-3683; South Dakota, C. C, sees. 998-1035. Will. 361 Modes of Interpreting. — Of two modes of interpreting? a will, that is to be preferred which will prevent a total intestacy. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention. Tech- nical words are not necessary to give effect to any species of disposition by a will. The term "heirs," or other words of in- heritance, are not requisite to devise a fee, and a devise of real property passes all of the estate of the testator, unless otherwise \imited. NOTE.— California, C. C, sees. 1326-1329; Alaska, Codes, pt. 5, c. 15, Bees. 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293 Montana, C. C, sec. 1779; New Mexico, Comp. Laws, sees. 1946-2O"0 North Dakota, C. C, sees. 3649-3683; South Dakota, C. C, sees. 998-1035 Utah, Eev. Stats., sec. 2776. The "Vested" not "Devested" Unless.— The testamentary disposition, when vested, cannot be devested unless upon the occurrence of the precise contingency prescribed by the testator for that purpose; and if a devisee or legatee dies during the life- time of the testator, the testamentary disposition to him fails, unless an intention appears to substitute some other in his place. NOTE.— California, C. C, sec. 1343; Alaska, Codes, pt. 5. c. 15, sees 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Montana, 0. C, sec. 1796; New Mexico, Comp. Laws, sees. 1946-2020- North Da- kota, C. C, sees. 3649-3683; South Dakota, C. C, sees. 998-1035; Utah, Ecv. Stats., see. 2793. Death of Devisee — Quo Ad Hoc Remainderman. — The death of a devisee or legatee of a limited interest before the testator's death does not defeat the interests of persons in re- mainder, who survive the testator. NOTE.— California, C. C, sec. 1344; Alaska, Codes, pt. 5, c. 15, sees. 137-167; Colorado, Mill's Stats., sees. 4662-4690, vol. 3, p. 1293; Montana, C. C, sec. 1797; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota! C. C, sees. 3649-3683; South Dakota, C. C- sees. 998-1035; Utah. Eev. Stats., sec, 2794. 362 New Book of Forms. WILL, DISPOSITION OF PROPEETY BY. No. 512.— Will. In the Name of God, Amen. I, P. C, of the city and county of Sacramento, state of California, of the age of forty-live years, and being of sound and disposing mind and memory, and not acting under duress, menace, fraud, or undue influence of any person whatever, do make, publish, and declare this my last will and testament, in manner following, that is to say: First. / direct that my body he cremated, so that it m.ay not be a source of disease, through its poisoning of the zvaters zvhen its tenant, I fvope, will be better housed. In preparing my body for cremation, select the most expetisive dressings and funeral trappings my estate can afford; then wrap my body in a simple sheet (or th^ like) ; theii give the price of zvhat they selected to the Children's Hospital, corner of California and Maple street, San Francisco, California. Secondly. / direct that my executors, as soon as they have sufficient funds in their hands, pay my funeral expenses as above suggested. Third. / give my son, C. C, all that certain lot, piece, or parcel of land, situate, lying and being in the city and county of San Francisco, state of California, bounded and described as follows, to zvit: {Description.^ Fourth. / give and devise all the rest, residue and remainder of any real estate, of every name and nature whatsoever, ozvned by me at the time of my death, to my said wife, J. C, and my said daughter, B. C, to be divided equally between them, share and share alike. I hereby nominate and appoint T. M. and G. B., of said city and county of San Francisco, the executors of this, my last Will and Testament, and hereby revoke all former wills by me made. In zvitness whereof, I have hereunto set my hand and seal, this ninth day of April, in the year of our Lord one thousand nine hundred and HveA Capacity of Testators, Generally. — Under this head all statutory refer- ences are to the Civil Code of California, and the adjudicated cases cited relate to a testator's mental capacity, menace, duress, fraud, undue influence destroying his free agency, and Ms right to dispose of his property by will. Umiaturalness and Unreasonableness. — The right to make a will is assured by law. It does not depend upon judicious use, and canifbt be Bet aside because it does not conform to a court or jury's ideas of what is just. If it is thought to be unnatural, then it must not be disturbed unless the evidence shows mental incapacity, fraud, menace, or undue influence: Estate of Wilson, 117 Cal. 262, 49 Pac. 172, 711. Wiix, Disposition of Property by. 363 An uncle ia not obliged to provide for his nephews and nieces; and if he does not, it will not be presumed that they were forgotten: Es- tate of Keegan, 139 Cal. 123, 72 Pac. 828. Testajnentary Capacity. — A mind sufficiently clear and strong to be able to know and understand the nature of the testamentary act, to know and remember the character and extent of the property disposed of, and the manner in which and the persons to whom it is desired to distribute it: Estate of Wilson, 117 Cal. 262, 49 Pac. 172, 711. A mere fleeting vagary as to property of another is not an insane de- lusion: Estate of Bedfield, 116 Cal. 637, 48 Pac. 794. A testator feeble in health, suffering undor disease, aged and infirm, with a mind capable of understanding the nature and situation of liis property and disposing of it intelligently without delusion, has capacity to make a will: Estate of Motz, 136 Cal.' 558. 69 Pac. 294. "Wills do not depend for their validity upon the testator's ability to reason logically, or upon his freedom from y>rejudice. " (If they did, a select few of us only would possess testamentary capacity.) Estate of Scott, 128 Cal. 57, 60 Pac. 527. If a will be contested upon the ground of insane delusion, the con- testant must present evidence sufficient to overcome the presumption of sanity: Estate of Scott, 128 Cal. 57, 60 Pac. 527. It is soundness or unsoundness of mind that controls the .judgment. A man may be in a state of extreme bodily or mental weakness or disease and yet he may possess sufficient understanding to direct how his prop- erty may be disposed of: Estate of Nelson, 132 Cal. 182, 64 Pac. 294. Intoxication. — If it be established that the testator frequently drank intoxicating liquors to excess and had been greatly intoxicated, and was not intoxicated at the time he made his last will, if no other cause for setting the will aside appears, it ought to stand: Estate of Wilson, 117 Cal. 262, 49 Pac. 172, 711. Insane Delusions. — If insane delusions are not shown to be operative iii the testamentary act, and which do not relate to the persons or ob- jects affected by it, they do not affect the wDl: Estate of Redfield, 116 Cal. 637, 48 Pac. 794. A will cannot be set aside unless it is established that the maker did not at the time when it was made possess a mind clear and strong enough to be able to understand the natnro of the testamentary act: Estate of Wilson, 117 Cal. 262. 49 Pac. 172. 711. Insane delusions are not merely temporary hallucinations or unfounded dislikes or antipathies, or false opinions or beliefs. They are firmly fixed beliefs of a diseased mind, which no argument or evidence can convince to the contrary, and which a rational mind would not entertain: Estate of Kendrick, 130 Cal. 360, 62 Pac. 605. Fraud. — It is not fraudulent to seek to control a testator in making a will with proper purpose and effect; and if false representations are hov-estly made with a belief tJxat th-ey are true, and xoith good motives, they are not fraudulent, nor will the will in this respect be eienited by reason of any fravdiblcnt representations, The language of the court ^a startling, but when considered with the fact that the record on appeal did not show that such false representations were made prior to the execution of the will, and were not shown to have been be- lieved and acted upon by the testator, it is plain that the fraud was not established: See Estate of Benton, 131 Cal. 472, 63 Pac. 775. Undue Influence. — A wife may justly influence her husband to make a will in her favor, for her benefit or for the benefit of others, so long as she docs not act fraudulently, or extort benefits from her husband when he is not in a condition to exercise his faculties as a free agent. There must be produced proof of pressure, which overpowered the voli- tion of the testator at the time the will was made: Estate of Lang- ford, 108 Cal. 608, 41 Pac. 701. 3^4 New Book of Forms. There nrast be some frnud or misrepresentation praotieed when the will was made, or moral coercion then employed, such as to destroy free agency: Estate of Kaufman, 117 Cal. 288, 59 Am. St. Rep. 179, 49 Pac 192. A mistress may Influence her lover to make a will in her favor. A will made under a mistress' influence which did not overcome the free will of the testator is not void because of "undue influence": Estate of RufBno, 116 Cal. 304, 4S Pac. 127. In this case the question of "un- lawful influence" was not raised, but was mentioned in the opinion. The relation of lover and mistress is not always lawful, nor is it always unlawful. It would seem that if any influence is exercised in respect to those disinherited by reason of the unlawful connection, such influ- ence would be unlawful and the will void. The words "undue influence" recognize the right to exercise due influence such as is referred to in Estate of Longford, 108 Cal. 608, 41 Pac. 701. The kind of undue influence that will destroy a testamentary writ- ing must be such as will destroy the testator's free agency at the time of the making of the will: Estate of Motz, 136 Cal. 558, 69 Cal. 294. A woman signed a supposed will disinheriting a sister, who was poor and had a large family, in favor of a niece, who was "well to do." The testator was paralyzed. In a former will she remembered her sister. The testator sent for her niece to induce her to be friendly to the former will. The will was changed in favor of the nieee. The niece came before the will was changed and spoke against the sister during repeated and long conversations. Before the change was made the testatrix, while in an enfeebled condition, put herself in the hands of her niece to be controlled by her in fhe change of the will. Held, that the niece's influence was undue: Estate of Kendrick, 130 Cal. 360, 62 Pac. 605. If a person makes an unnatural will, a foolish will or an unjust will, that fact does not justify a jury in attempting to substitute their v'ews of a fair will for that which, under the law, the testator had a right to make: Estate of Donovan, 140 Cal. 390, 73 Pac. 1081. No. 513. — Will Making a General Disposition of Property, Also an Annuity, with Other Bequests. I, A. B., of C, in the county of S., being infirm, and sensible, too, of my liableness to sudden death, at the same time being, as I think, of sound mind, judge it best to make, and do hereby make, this my last will and testament. It is my will that my debts and the charges of my funeral be paid as soon as conveniently may be after my decease, and I leave the charges of my funeral to the direction of my family. I give and devise, of all my estate, real and personal, in tlie following manner: I give to my daughter M. E. and to her heirs and assigns Hfteen hundred dollars, which with what I heretofore advanced to and for her, viz., before her intermarriage with Mr. D. M., I judge to make at least twenty thousand dollars. And I discharge her and all concerned and that may be concerned with and for her and them, of what I charged him with in my books. I give to my daughter G. L. and to her heirs and assigns, twenty thousand dollars. Will, Disposition of Property by. 365 I give to my daug/itcr G. E. and to Iter heirs and assigns twenty thousand dollars, to be paid to her when she shall arrive at the age of twenty-one years; and if she sliall leave lawful issue, then I give the same sum to such issue, to be paid to such issue, in equal shares, when and as each of them arrive at twenty-one years of age, or at the time of his or her marriage, whichever shall first happen. And in the meantime it is my will that the same sum be kept at interest for the benefit of the said G. E., and svich issue, and I empower my executors, or whoever shall have the care of the said twenty thousand dollars, to apply as much of the interest and income of the same as they shall judge best for her and their support and education. I give to Mr. M. I'\, on the day and at the time of my decease, five thousand dollars, provided and on condition he shall then be employed or engaged in my business in like manner as he now is. This gift I so make him in testimony of the great re- gard I have for him, and the sense I have of his great faithful- ness in my service. (It is zvell to give Mr. M. F. notice of this clause lest he may, unazvare of it, strike if his union goeth out.) And it is my will that if my son H. dies before he arrives at the age of twenty-one years, then what shall remain of his share f of my estate shall go to his surviving brethren aforenamed, in j equal shares. But if either of these brethren shall happen to die without legal issue living, and this while the said H. shall be living, then I, in the case aforesaid, give the same to the survivor of said brethren (namely, £. and D) and the heirs of such sur- vivor. The remainder of my estate I give and grant to my sons E., D., and H. iri equal shares, and so to their respective heirs forever. The share of my son H. of the same remainder, to be paid to him when he comes to the age of t>.vcnty-one years, but until then the same share to remain in the hands of my executors, the personal estate to be let and placed at interest, and the real estate im- proved or let to the best advantage, for the use of the said H., and so in like manner, his share of all surplusage of interest and income, which I would have added to the capital stock, and let at interest for his benefit, saving nevertheless, that the same interest and income may be used, paid, and applied, as I do by tliis will grant, allow, order and provide. And as my executors must necessarily have much trouble, and employ a great deal of time in executing this my will, I desire and empower them to employ Mr. A. R. W., attorney at law, San Francisco, California (and a great trader and financier), or any other person they shall think fit, in assisting them in the settlement of my accounts and 2^6 New Book of Forms. affairs, and in the improvement of my trading stod<, and that tliey agree to give and pay to him and them such sums of money out of my estate therefor, as he, the said A. R., and they, my said executors, shall judge reasonable. Signed, etc. No. 514. — Clause Disposing of Real and Personal Estate to Trustees, with Power to Sell. I, A. B.J of the city of Sacramento, California, do hereby make this my last will and testament. I appoint C, D. and E., all residents of said city, and the sur- vivor and survivors of tliem, executors of this will. I dispose of my estate as follows: I give all my lands and tenements, wheresoever situated, unto the said C, D. and E., and the heirs of the survivor of them, to have and to hold the same to the uses following, to wit, to the use of them, the said C, D. and E. and the survivor of them, and his heirs, during the life of F. G., husband of my daughter H. B., and after his decease, if my said daughter survives him, to her use and the use of her heirs and assigns forever; but if my said daughter does not survive him, then, after his decease, to the use of the children of my said daughter, and their respective heirs forever, as tenants in common, and the legal representa- tives of any child of my said daughter, who may have deceased, to be entitled to the same share jis his or her parent would have been, if living. And the lands and tenements which I have devised unto the said C, D. and E., and the survivor of them, for and during the life of the said F. G., is upon the especial trusts following, to wit, that they the said C., D. and E., and the survivor of them, shall, during the continuance of the said estate, receive the rents and profits accruing from the lands and tenements aforesaid, and therewith make all necessary repairs, and pay all taxes and other necessary charges and expenses in and about the same ; and after all such 'payments deducted, shall at such times and places an- nually, and in such proportions as they (or the survivors) or the survivor of them, or the heirs of the survivor of them may deem expedient, pay over the residue of such rents and profits to my said daughter during her life, to her sole and separate use and benefit; and after her decease, in the same manner, shall appro- priate and expend the same in the maintenance and education of her children, or any or either of them, as they, the said C. D. and E., or the survivors or survivor of them may deem expedient. No. 515. — Clause — Power to SelL And I do hereby authorize and empower the said C., D. and E. WiLh, Disposition of Property by. 367 and the survivors and survivor of them, during the hfe of the said F. G. if they shall judge expedient either in the lifetime of my said daughter, for her support and maintenance, or after her decease in the lifetime of the said F. G. for the maintenance and education of her children, or any or either of them, to sell and convey, for such prices as they deem proper, all or any part of my lands and tenements aforesaid, and the whole proceeds of such sale or sales, or any part thereof, or the interest and income tfiereof, from time to time, and at such times and places, in such proportions as they may judge expedient, to appropriate to all or any of the purposes aforesaid ; and after the decease of the said G., to pay the whole proceeds of such sales then remaining unto my said daughter, if living, for her own use forever; otherwise, to distribute the same among her children, to their respective uses forever, as tenants in common; and the legal representatives of any child, who may have deceased, to be entitled to the same share as his or her parent would have been, if then living. No. 516. — Residue of Personal Estate to be Invested in Stock. And I do further authorize, empower, and direct the said C, D. and B., and the survivors and survivor of them, after payment of my just debts and incidental charges by course of administration, to retain and keep in their own hands, during the life of the said F. G., all my personal estate then remaining, and the same to in- vest in blank or other stock, or put out at interest on good secur- ity, and the interest and income thereof, annually, at such times and places, and in such proportions cls tJiey shall judge expedient, to pay to my said daughter during her life, for her sole and sep- arate use. And if my said daughter shall survive the said F. G., then, on his decease, to pay the whole of said personal estate to her, to her own use forever ; but if she shall not survive the said F. G., then during his life, after her decease, to appropriate the same interest and income thereof to the maintenance and educa- tion of her children, or any or either of them, as they shall judge expedient, and after the death of the said F. G., to distribute the whole of said personal estate among said children, to their re- spective use forever ; and legal representatives of any child, who may have died, to be entitled to the same share as his or her parent would have been, if then living. And I do further au- thorize the said €., D. and E., and the survivor of them, during tlie life of said F. G., in case that they shall judge expedient, to appropriate the whole, or any part of the principal of my said personal estate either to the support and maintenance of my said daughter during her life, or after her death, to the education and maintenance of all or any of her cliildreru Signed, etc. 368 New Book of Forms. No. 517. — Devise to Daughter for Life, Remainder to Trus- tees* to Support Contingent Remainders, etc. And as to, for, and concerning my said house, at TV. aforesaid, and the said 'pasture and all coach-houses, barns, stables, edifices, buildings, courts, yards, orchards, gardens, and pleasure grounds, to the said capital house belonging or appertaining, and now in my own occupation, from and immediately after the decease of my said wife and son, and also as to, for and concerning all the said tenements, etc, hereinbefore given or limited in use to the said A. and B., their executors, etc., for the said term of twenty years, upon the trusts aforesaid, from and immediately after the end, expiration, or other sooner determination of the said term of twenty years, and, in the meantime, subject thereto and to the trusts thereof, to the use of my daughter H. M. H., wife of the said M. H., the elder, for and during her life ; and from and after the end, expiration, or other sooner determination in that estate by forfeiture or otherwise in her lifetime, to the use of the said C. P. and P. W., and their heirs, during the life of my said daughter, in trust to support and preserve the contingent uses and estates, hereinafter given or limited from being defeated or destroyed, and for that purpose to make entries, and bring ac- tions, as occasion shall be or require, but nevertheless to suffer my said daughter or her assigns, to receive and take the rents and profits of the said lands, etc, for her own use, during her life; and from and immediately after the decease of my said daughter, then also as to, for, and concerning the said lands, etc., with their respective appurtenances, to the use of my grandson,, M. H., the younger, and his assigns, for and during his life, and from and after the determination of that estate, by forfeiture or otherwise, in his lifetime, then to the use of the said C. P. and P. W. and their heirs, during the life of my said grandson, M. H., the younger, in trust to support and preserve the contingent uses and estates hereinafter given or limited from being defeated or destroyed. No. 518. — A Proviso Binding the Testator's Decedants to Take His Surname. Provided always, and my will nevertheless is, that, if the per- sons to whose use the said lands and tenements are hereinbefore devised or limited, in remainder from and after the decease of my said daughter, H. M. H., do not, and shall not, as and when they shall severally, by virtue of the devises and Umitations here- *This clause and all others referring to trusts, etc., which are not permissible under the laws of California are dearly applicable in other states and territories. Wii.1., Disposition of Property by. 369 inbefore contained, become and be entitled in possession to the said premises, respectively, or to receive and take the profits thereof, use, assume and take upon themselves respectively the surname of S., and by the said surname of S. only, and no other, from thenceforth forever, thereafter continue to name, style and w^rite themselves, in all deeds, instruments and writings, S. only, or shall refuse, decline, or neglect so to do, for the space of six months after they shall severally become and be so entitled as aforesaid, and be of the age of twenty-one years or upward : Then, and as often as the case shall so happen, the estate and interest of him, her, or them so refusing, declining, or neglecting as afore- said, of and in all the said premises hereinbefore given and de- vised, shall from thenceforth cease, determine and be void, in such and the same manner to all intents and purposes whatsoever as if he, she or they so refusing, declining or neglecting as afore- said was or were actually dead without issue, anything herein- before contained to the contrary thereof notwithstanding. The surname aforesaid to be always spelled with the same let- ters in the same sequence as in this instrument used; and the omission or displacement of any letter or letters, or the addition of any word or letter so as to change the sound, accent or mean- ing of said surname shall work a forfeiture as is hereinabove provided. No. 519. — Clause — Money Given upon Trusts. I give ten tficusand dollars to the said C. P. and P. IV., their, etc., upon and for the trusts, intents and purposes, and with and subject to the powers and provisos hereinafter mentioned and ex- pressed of or concerning the same, that is to say, upon trust, that they, the said C. P. and P. W., and the survivor of them, etc., shall pay the interest of the said sum of ten thousand dollars to my said daughter, H. M. H., or otherwise autliorize and empower her to receive and take the same for her own use, during her life, and shall, after her decease, stand and be possessed of the said sum of ten thousand dollars, in trust for all and every the child and children of my said daughter, H. M. H., lawfully be- gotten or to be begotten, and to go or be paid, and assigned and transferred to such child or children, at such time or times, and if more than one, in such parts, shares and proportions, and with, under, and subject to such conditions and limitations over, or my said daughter shall, by deed or writing, or by her last will direct. No. 520. — Clause — Provision for the Indemnity of Trustees, etc. And I do hereby declare m> will to be, that it shall be lawful New Forms — 24 3/0 New Book of Forms. to and for my said trustees and executors, and their respective heirs, executors, and administrators (or if such cannot be, by those appointed by law in their stead), by and out of all or any of the moneys, which, by virtue of this my will, or any trust therein declared, shall come to their, or any of their, hands, to deduct, retain to and reimburse themselves all such reasonable costs, charges and expenses as they respectively sustain, expend, or be put unto, in or about the execution of this will, and also that my said trustees and executors, their respective heirs, executors and administrators (with the limitation aforesaid) shall be charged and chargeable only, every of them, for and with his own re- spective receipts, payments, acts and willful defaults, and not otherwise, and shall not be charged or chargeable with or for any sum or sums of money, other than such as shall actually and respectively come to his, her and their hands by virtue of this my will, nor with or for any loss or damages which may happen, in or about the execution of all or any of the trusts hereby in them reposed, without his, her or their respective zvillful default. No. 521. — A Clause that, in Case a Legatee Shall Sue or Molest Any Other Legatee, in the Enjoyment of His Legacy, etc., Such Gift to Such Person, etc., to be Void. Aud further, in case any person or persons to whom any legacy or benefit out of, from or by reason of this my will, shall come, shall commence any suit in any court whatsoever, or by any ways or means, sue and disturb, or cause to be sued and disturbed, my executors or trustees herein named, or any other person or per- sons whatsoever, to whom anything is by me given in this my will, from the recovering, quiet enjoying and possessing, of what is by me herein given as aforesaid, and in such manner as is therein mentioned, then my will and meaning is, that all and every the legacy and legacies, herein by me given to any such person or persons whatsoever, who shall so sue and disturb as aforesaid, shall cease, determine and be utterly void. And that then and from thenceforth, I do give and bequeath all and every the legacies, which I had in this my will given to such person or persons, or in trust for such person or persons, unto my said grandson, A. B., his executors and administrators. No. 522. — ^A Proviso for Appointing Ylfw Trustees. Provided likewise, and I direct, that in case any or either of them the said trustees or trustee, or any future trustee or trustees, shall die, or be desirous to be discharged from, or neglect or re- fuse to act in, the trusts hereby created, at any time or times before the same trusts shall be finally performed or otherwise determined, then it shall and may be lawful to and for the sur- vivor or survivors of them, by any writing or writings, under his Will, Disposition op Property by. 371 or their hands, and be attested by tzvo or more credible u^itncsses, from time to time, to nominate or appoint any other person or persons to be trustee or trustees, in the stead or place of the trustee or trustees so dyingf or desiring^ to be discharo-ed, or re- fusinc^ or declinmg;, or becoming incapable to act as aforesaid, and tliat when, and so often as, any such new trustee or trustees shall be nominated and appointed as aforesaid, all the trust es- tates, moneys and premises, which shall then be vested in the trustee or trustees so dying, or desiring to be discharged, or re- fusing or declining, or becoming incapabel to act as aforesaid, either solely or jointly with the other trustee or trustees, shall be thereupon, with all convenient speed, conveyed, assigned and transferred in such manner, and so as that the same shall and may be legally and effectually, vested in the surviving or con- tinuing trustee or trustees, or if there shall be no continuing or surviving trustee or trustees, then in such new trustees, and upon the said trusts as are hereinbefore declared of and concerning the same trust estates, moneys and premises respectively, or such of them as shall and may be subsisting and capable of taking efTect ; and that any such new trustee or trustees shall, in all things, act and assist in the management, carrying on and exe- cution of the trusts, to which they shall be so appointed in con- junction with the other surviving or continuing trustee or trus- tees ; and if there shall not then be anv such sundving trustee or trustees, then by themselves, as fully and effectually, and with all the same power and powers, authority and authorities, of con- sent, approbation, discretion, calling in, laying out and investing, compounding, compromising, giving and signing effectual indem- nifications and discharges to purchasers, mortgagees, or others, and all other powers and authorities whatsoever, to all intents and purposes whatsoever, as if he or they had been originally, in and by this my will appointed trustee or trustees, for the pur- poses for which such trustee or trustees, in or to whose place such new trustee or trustees shall respectively come or succeed, are and is enabled to do, or could or might have done, under and by virtue of this my will, if then living, or continuing to act in the trusts hereby reposed in them ; and I particularly recommend and request that such substitution or nomination of a new trustee may be made on the death or resignation of any of the said trustees, or within twelve months after such event shall take place. No. 523. — Another Form, etc. Provided, always, that in case of the death of either of the said trustees, my will is, that the survivor of them do, imme- diately after the death of either of them, the said trustees, by ZT^ Kuw Book of Forms. any writing under his hand and seal, to he attested hy two or more credible witnesses, appoint some other lit person or persons to be trustee or trustees in the place and stead of the trustee so dying, which new trustee or trustee so to be appointed shall have the same power touching the trust premises and in the execution of the trusts herein contained as they, the said C. D. and £. F., or eitlier of them, would have had by virtue of this my will, or otherwise, in case they had been living. And lastly, I do hereby constitute the said C. D. and E. F., trustees and executors of this my last will and testament, and do give and bequeath to each of them the sum of five thousand dollars, upon condition that they respectively take upon them the execution of the trusts hereby in them reposed, etc. No. 524. — A Clause in a Will Concerning Disputes. And lastly, my express will and meaning is, and I do hereby order, that if any difference, dispute, question or controversy shall be moved, arise or happen, concerning any gift, bequest or other matter or thing in this ray will given and bequeathed, ex- pressed or contained, that then no suit or suits in law or equity, or otherwise shall be brought, commenced, or prosecuted for and concerning the same, but the same shall be referred wholly to the award, order, and determination of a board of arbitrators, its judgment to be entered as an order of court, and what they shall order, direct or determine therein shall be binding and con- clusive to all and every person and persons therein concerned. No. 525. — A Clause "Whereby Testator Forgives All Debts Due from Relations Therein Named. And whereas, there are considerable sums of money due and owing to me upon bonds, bills, and otherwise, from my relations hereinbefore named, it is my will, and I do hereby direct, that the same bonds, bills, etc., immediately after my death, shall be canceled and destroyed by my said executors. And I do hereby discharge my aforenamed relations, and every of them, their and every of their heirs, executors and administrators, from the pay- ment of every debt and debts due and owing to me, or my estate, upon any account whatsoever, without any abatement or deduc- tion from or out of their legacies, before by me given or devised to them respectively, in and by this my last will and testament. I have done my best to collect all such evidences of indebted- ness and I add this clause to save my estate useless expense. A. B., Testator. No. 526. — A Clause Whereby Testator Remits a Debt of Ten Thousand Dollars Due from His Brother, in Case He does not Molest the Execution of His WilL And whereas, my brother W. D. stands justly and duly in- Wiix, Disposition of Property by. 373 debted to me in several sums of money, which I have, for several years now last past, paid, lent and advanced to and for him and his use, amounting in the whole to the sum of $10,000 and up- wards ; my will therefore is, that in case he gives no trouble or molestation to my executors in the execution and performance of this my last will and testament, I do hereafter remit and release unto him the said debt of $10,000, and he shall not be answerable to my executors for the same. But in case he gives trouble, molestation or disturbance to them, or either of them, for or on account of anything in this my will contained, then I give the said $10,000 to my executors, upon the trusts, intents and purposes in this my last will mentioned, and in aid of the full execution and performance of the same.* No. 527. — A Proviso Touching Nieces' Marriages Without Consent. Provided always, and my will and meaning is, that if any or either of my said nieces, at any time hereafter during the life- time of their father and mother and the said B. (the trustee), or the survivors or survivor of them, do and shall marry, without the approbation and consent of their said father and mother and the said B. or of two of the si-irvivors of them, in zvriting under his or their hand or hands, first had and obtained, then and in such case, all and every the devises, bequests and legacies, and every of them, shall cease, determine, and become absolutely void, fmstrated and of none efTect in law or equity, to all intents and purposes w'hatsoever; and then and from thenceforth, and after such marriage and marriages without such approbation as afore- said, I do give, devise and bequeath all and singular the land, money and all other the benefit and advantages of all and every the matters and things hereinbefore given, devised, or bequeathed, or which by virtue of this my will might have been had, claimed, or demanded, by such of my said nieces as without such appro- bation and consent as aforesaid, in case she had married, etc., with such approbation, etc., to such of my said nieces, their heirs, etc., as shall not then be married, or if married, to her or them who hath or have taken and married by and with such approba- tion and consent as aforesaid : it being my will and meaning, tliat such of my said nieces who shall so marry without such approba- tion and consent as aforesaid, first had and obtained, shall not have, take and enjoy any profit, benefit or advantage whatsoever, by or by virtue of this my will, but shall forfeit to her said sisters, and her or their, etc., all and .every the said, etc., benefits, etc, in and by this my last will devised, given or bequeathed, or which, *Query: Under the inheritance tax law of California would "W. D. " be liable for a tax on said bequest t 374 New Book of Forms. by virtue or color of this my will, might have been had, taken, claimed or demanded, by such of them as shall so marry without such consent as aforesaid, in case she had married with such approbation, etc. No. 528. — A Proviso that if a Daughter Marry Without Con- sent, Her Portion not to be Paid Her, but Only the Inter- est, and the Principal to be Divided Equally Amongst Her Children. Provided also, and my further will is, that in case both or either of my said daughters shall, before their respective ages of twenty-one years, intermarry with any, against or without the consent of my said wife, if then living, but if dead, without the consent or approbation of my said executors, or the survivor of them (such consent as aforesaid to be testified by writing under the respective hands of my said wife, or of my said executors), then and in such case, the interest only, after the rate of tefi per cent on the portion or portions of such daughter or daughters so marrying without such consent as aforesaid, shall be paid to her or them during her or their respective life or lives, for her or their sole and separate use and benefit, exclusive of any hus- band ; and that upon the death of such daughter or daughters, marrying without such consent as aforesaid, the portion or por- tions, so given or intended for such daughter or daughters, shall be paid to and for the use and benefit of all and every the child or children of such daughter so marrying without such consent as aforesaid ; the same to be divided equally to and amongst them, share and share alike (if more than one), and to be paid to such child or children, at his, her, or their respective age or ages of twenty-one years, or day or days of marriage which shall first happen, together with interest for the same after the rate afore- said, from the time of their respective mothers' death, until the same become payable and be paid, anything, etc. No. 529. — A Bequest of One Dollar to an Imprudent Son, Whereas my eldest son, W. H., hath highly offended and dis- obeyed me, I therefore give and bequeath unto my said son W. H. one dollar and no more. No. 530. — A Devise or Gift to Stanford University, San Ma- teo County, California, for the Education of One Poor Scholar Forever. Item: I give, etc., unto the said S. University and to its heirs and assigns forever, all that block of land in the city and county of San Francisco, state of California, bounded by California, Will, Disposition of Property by. 375 Mason and Sacramento streets. Upon this special trust and con- fidence nevertheless, that it shall, from time to time, and at all times hereafter, permit and suflFer the directors and fellows of S. University for the time being, and their successors forever, to receive and take the rents, issues, and profits thereof, which I direct and appoint, shall from time to time, and at all times here- after, be paid and allowed for and toward the maintenance and education of a poor scholar of the said college, for and during and until such scholar shall be bachelor of arts ; and then to another poor scholar to be elected and chosen, which scholar shall, from time to time, be nominated, elected, and chosen by the directors and president of the said college. The word "poor scholar" shall not be construed to mean a stupid, etc., scholar, but an indigent one. No. 531. — A Devise to an Executor in Consideration of Friend- ship, etc. Item : In consideration of the love and friendship which I have and bear for and toward him, tlie said /. C. R., and also in con- sideration of the many faithful services he has for many years last past done and performed for me in and about my affairs, and likewise in recompense for the great care and pains he may be at and put unto, in the faithful execution of this my last will and testament, I give and devise unto him, the said /. C. R., all the rest, residue, and remainder of my real and personal estates whatsoever, goods and chattels, lands, tenements and heredita- ments, both in possession and in reversion, that I shall be pos- sessed of, or any way entitled unto, at the time of my decease (after all my debts and legacies are first paid and satisfied there- out, as aforesaid), to hold and enjoy the same to his own proper use and behoof, and to his heirs and assigns forever.* No. 532. — A Direction for Surviving Trustee to Assign to New Trustees, to Prevent the Trust from Going to an Executor or Administrator. And I do hereby further order, that when and so often as either of my said trustees shall die, that then the survivors of tliem shall forthwith assign, or cause to be assigned my said houses, etc, and all his estate, term and interest therein, to one or more new trustee or trustees, to be nominated by the person or persons, who for the time being shall be entitled to the rents and profits thereof by virtue of this my will, in such manner as that the legal interest •I have been cartful not to leave any part of my estate undisposed fication. ' ') Affidavit. 389 No. 559. — Affidavit to Account, [Title of Court and Estate.] State of California, County of Butte, — ss. M. J., of said city and county, being duly sworn, says: I am the administratrix of the estate of T. J., deceased. The forego- ing accoimt, filed for the first or second, etc., account of my ad- ministration of the said estate, is in all respects just and true, and according to the best of my knowledge, information and be- lief, contains a full, true and particular account of all my receipts and disbursements on account of the said estate, from the co)n- mencement of my administration to the sixteenth day of June, 2 00j, and of all sums of money belonging to the said estate which have come into my hands as such administratrix, or which have been received by any other person by my order, or authority, for my use ; and of all claims presented, and allowed, or paid; and I do not know of any error or omission in said account to the preju- dice of any person interested in the said estate. [/ further state that the items of expenditure, not exceeding tiventy dollars, for zvhich no vouchers are annexed or produced, have actually been paid and disbursed by me, at the place zvhere, the date zi'hen, and to the parties to zvhom the said payments are stated, in the said account, to have been made respectively; and that said account exhibits not only the debts which have been paid, but also a statement of all debts zvhich have been duly presented and allowed during the period embraced in the said account. NOTE. — In California six months after his appointment, and at any time when required by the court either upon its own motion or upon the application of any person interested in the estate, the executor or administrator must render an exhibit under oath, showing the amount of money received and expended by him, the amount of all claims pre- sented against the estate, and the names of the claimants, and all other matters necessary to show the condition of its affairs: Cal. C. C. P., see. 1622. In all places see "Exhibit made by Executor or Administrator Six Months After His Appointment." Alaska, Codes, pt. 4, c. 86, sec 859; Arizona, C. C, par. 1854; Idaho, C. C. P., sec. 4243; Montana, C. C. P., 2780; Nevada, Comp. Laws, see. 2970; North Dakota, Probate Code, sec. 6486; Oregon, Codes and Statutes, see. 1699; South Dakota, Probate Code, sees. 135, 272; Utah, Eev. Stats., sec. 3941; Wyoming, Rev. Stats., sees. 4713-4719. 39© New Book of Forms. No. 560. — Affidavit for Order of Arrest. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. /. D., being duly sworn, says, that he is the plaintiff in the above-entitled action ; that a sufficient cause of action exists in favor of plaintiff against said defendant, as fully appears from the verified complaint herein, a copy of which complaint is here- to annexed and made a part of this affidavit, and, affiant avers that the allegations therein contained are true ; that it is an ac- tion for the recovery of money on a cause of action arising upon an express contract, and that the defendant in said action is about to depart from this state with intent to defraud his creditors. And affiant further states and shows the following facts and ciramistances in support of the above allegations of fraud, to wat : Said defendant lias converted all his property into cash at much less than its real value, and lias, under the assumed name of "B. J." secured a passage on the steamer "M. T.," advertised to sail this day for Panama, and is now on said steamer with in- tent to leave this state. Said defendant, although he has met this affiant daily within the past week^ and ivas yesterday requested to pay the plaintiff's claim, Jms never informed the plaintiff that he intended to leave the state; and yesterday, after having made full preparations to leave this day, he promised the plaintiff to pay to-morrow, at plaintiff's office. (All courts.) NOTE. — California, C. C. P., sees. 479, 481; Alaska, Codes, pt. 4, c. 12, sec. 100; Idaho, C. C. P., sec. 3247; Montana, C. C. P., sees. 801, 803; Nevada, Comp. Laws, sec. 3170; North Dakota, C. C. P., sec. 5." 00; Oregon, Codes and Statutes, sec. 261; South Dakota, C. C. P., sec. 159; Utah, Rev. Stats., sec. 3012; Washington, Ballinger's Codes, sec. 5i65; "Wyoming, Eev. Stats., see. 3959. No. 561. — Affidavit for Order of Arrest — Fraudulent Debtor. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. H. W., being duly sworn, says that he is the plaintiff in the above-entitled action ; that a sufficient cause of action exists in favor of plaintiff against said defendant, as fully appears from the verified complaint herein, a copy of which complaint is hereto annexed and made a part of his affidavit; that it is an action for Affidavit. 39r the recovery of money, on a cause of artion arising upon an ex- press contract, and that the defendant in said action has been guilty of a fraud in contracting the debt and incurring the obli- gations for which the said action is brought. And affiant furtiier states and shows the following facts and circumstances in support of the above allegations of fraud, to wit : On the first day of August, iqo6, defemiant said to plaintiff, at the Palace Hotel, in said city and county, that he had $10,000 on deposit with the Bank of Wells, Fargo & Co., San Francisco, and requested plaintiff to lend him one thousand dollars until ten o'clock the next day; and plaintiff, relying upon zvhat defendant had told him as aforesaid, then and there loaned him the said money, which he promised to repay at the said hour of ten A. M. the next day. That defendant nez'er had any money on deposit at said bank, and during all said time he was insolvent, and he lias never repaid plaintiff any of said money, and fie obtained the same with intent to cheat and defraud plaintiff. (All courts.) No. 562. — Affidavit for Order of Arrest — Removal, etc^ of Property with Intent to Defraud- x [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. /. S., being duly sworn, says, that he is the plaintiff in the above-entitled action ; that a sufficient cause of action exists in favor of plaintiff against said defendant, as fully appears from the verified complaint herein, a copy of which complaint is hereto annexed and made a part of this affidavit ; that it is an ac- tion for the recovery of money, on a cause of action arising upon an express contract, and that the defendant in said action Ims re- moved and is about to dispose of all his property with intent ta defraud his creditors. And affiant further states and shows the following facts and circumstances in support of the above allegations of fraud, to wit: Said defendant Jtas been engaged in the cigar and tobacco busi- ness, and during last night fiad all his tobacco and cigars, the ex- act value of ivhieh is unknozim to said affiant, but zvhich said af- fiant believes to be of the value of fifteen humired dollars, or thereabouts, being all the property of said defendant not exempt from execution, conveyed from his place of business on Jackson street, in this city, to some place or places, to the said affiant un- knozni. and has to-day sold a large portion of said tobacco and cigars for cash, and falsely represents tJiat he has only removed 392 New Book off Forms. his stock, preparatory to putting it into a nezv place of business which he is about to open in this city, at No. 210 Pacific street; and said affiant is informed by A. S., the oivner of the premises last aforesaid, that the same have not been leased to said defend- ant, and that said defendant has never applied to said S. for a lease of said premises for any purpose whatever. (All courts.) No. 563. — Affidavit for Attachment. [Title of Court and Cause.] State of California, County of San Mateo, — ss. /. D., being duly sworn, says that he is the plaintiff in the above-entitled action ; that the defendant in the said action is in- debted to the said plaintiff in the sum of tive hundred (300) dol- lars, gold coin of the United States, over and above all legal set- offs and counterclaims, upon an express contract for the direct payment of money, to wit : a certain promissory note, given for the sum of live hundred dollars, United States gold coin, with interest thereon at the rate of one per cent per month, and that such contract was made and is payable in this state, and that the payment of the same has not been secured by any mortgage or hen upon real or personal property, or any pledge upon personal property. [If the debt has been secured, then say that the se- curity, describing it, has, ivithout any act of plaintiff, or the person to whom the security zvds given, become valueless.^ That the said attachment is not sought and the said action is not prosecuted to hinder, delay, or defraud any creditor of the said defendant. (All courts.) NOTE. — In California the plaintiff, at any time after issning the Bummons, may hnve the property of the defendant attached, as secur- ity for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment, in the following cases: 1. In an action upon a contract, express or implied, for the direct paj'^ment of money, where the contract is made or is payable in this state, and is not secured by any mortgage or lien upon real or per- eonal property, or any pledge of personal property, or, if originally Bo secured, such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless; 2. In an action tipon a contract, express or implied, against a defendant not residing in this state: Cal. C. C. P., sees. 537, 538; Alaska, Codes, pt. 4, c. 14, Bee. 136; Arizona, C. C, par. 333; Idaho, C. C. P., sec. 3295: Montana, C. C. P., sec. 891 ; Nevada, Comp. Laws, sec. 2550; North Dakota, C. C P., see. 5356; Oregon, Codes and Statutes, sec. 297; South Dakota, C. C. P., sec. 207; Utah, Rev. Stats., sec. 3066; Washington, Ballinger'a Ck)des, see. 5351; Wyoming, Rev. Stats., sec. 3989. i Affidavit. 393 No. 564. — Affidavit for Attachment Against Nonresident, [Title of Court and Cause.] State of California, County of Sa)ita Cms, — ss. /. D., bcifjs; duly yivorn, says, that he is the plaintiff in the above-entitled action : that the defendant in the said action is in- debted to the said plaintiff in the sum of four hundred and fifty dollars, gold coin of the United States (upon an express contract for tlie direct payment of money, to wit : for goods sold and dehv- ered to defendant), over and above all leg^l setoffs or counter- claims, and that the said defendant is a nonresident of this state. That the said attachment is not sou£2:ht, and the said action is not prosecuted to hinder, delay or defraud any creditor of the said defendant. (All courts.) No. 565. — Affidavit on Claim and Delivery of Personal Prop- erty. [Title of Court and Cause.] State of California, County of Yolo, — ss. /. D., beins^ duly sworn, says, that he is the plaintiff in the above-entitled action : that the said plaintiff is the ozvner of [or is lawfully eftfitled to the possession of; or, plaintiff being the owner, the property is ztrongfuUy detained by defendant] the fol- lowing^ described personal property, to wit: [description of the property.] That the said property is in the possession of, and wronsrfully detained bv, the defendant in the said action; that the plles^ed cause of the detention of the said property, accordinsf to thi<^ af- fiant's best knowledg"e, information, and belief is the following, to wit: [State cause of detention.] That the said property, or any part thereof, has not been taken for a tax, assessment, or fine, pursuant to a statute, or seized under an execution or an attachment a^j^ainst the property of the said plaintiff, and that the actual value of the said property is four hundred and fifty dollars. (All courts.) NOTE. — In California where a delivery is claimed, an afTidavnt mnst be made by the plaintiff, or by some one in his behalf, showing: I. That the plaintiff is the owner of the property claimed (particularly de- scribing it), or is entitled to the possession thereof; 2. That the prop- erty is wrongfully detained by the defendant; 3. The alleged cause of the detention thereof, according to his best knowledge, information, and belief: C. C. P., sec. 510; Alaska, Codes, pt. 4, c. 13, sec. 124; Arizona, 394 New Book oi? Forms. C. C, par. 3812; Idaho, C. C. P., sec. 3272; Montana. C. C. P., sec. 841; Nevada, Comp. Laws, sec. 2195; North Dakota, C. C. P., sec, 5332: Oregon, Codes and Statutes, sec. 285; South Dakota, C. C. P., sec. 185; Utah, Rev. Stats., sec. 3046; Washington, Ballinger's Codes, sees. 4119, 5427, 5428; Wyoming, Bcv. Stats., sec. 4146. No. 566. — Affidavit — Contempt Committed. [Title of Court and Cause.] State of California, County of Butte, — ss. /. B., being duly sworn, says : That he is a duly elected, quali- fied and acting sheriff of said county ; that on the second day of January, 1905, in the town of Downieville, Sierra county, he duly served a subpoena on H. C, Esq., duly issued out of this court, on the part of defendant, commanding the said H. C, Esq., to appear in this court on this third day of January, ipoj, at the hour of ten o'clock A. M., as a witness on behalf of defendant; tJmt the said H. C. did not demand his fees as a -witness; that when the said H. C. was served a^ aforesaid he said that he would not appear, and that if tlie court wanted him it might sejid a car- riage, and he would then consider zvhether he would obey said subpoena; that the said H. C. has not obeyed said subpoena, and did not appear as a witness this day, though his name was by me, as directed by the judge of this court, called in a loud voice at the door of this court. Wherefore, affiant prays that a warrant may be issued for the arrest of said H. C, and that he may be dealt with as provided by law. (All courts.) NOTE. — In California the following acts, in respect to a court of justice, are contempts: 1. Disorderty, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding; 2. A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding; 3. Misbehavior in office, or other willful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person appointed or elected to perform a judicial or ministerial service; 4. Deceit or abuse of the process or proceedings of the court by a party to an action or special pro- ceeding; 5. Disobedience of any lawful judgment, order, or process of the court; 6. Assuming to be an officer, attorney, counsel of a court, and acting as such without authority; 7. Rescuing any person or property, in the custody of an officer by virtue of an order or process of such court; 8. Unlawfully detaining a witness or party to an action while going to, remaining at, or returning from, the court where the action is on the calendar for trial; 9. Any other unlawful interference with the process or proceedings of a court; 10. Disobedience of a subpoena duly served, or refusing to be sworn or answer as a witness; 11. When summoned as a juror in a court, neglecting to attend or serve as such. Affidavit. 3(55 or improperly conversing with a party to an action to be tried at such court, or with any other person, in relation to the niprits of such action, or receiving a communication from a party or other person in respect to it, without immediately disclosing the same to the court; 12. Disobedience, by an inferior tribunal, magistrate, or officer of the lawful judgment, order, or process of a superior court, or proceeding in an action or special proceeding contrary to law, after such action or special proceeding is removed from the jurisdiction of such in- ferior tribunal, magistrate, or officer. Disobedience of the lawful orders or process of a judicial officer is also a contempt of the authority of such officer. It is also a contempt for a person ejected from real property to re- enter under the same [old] titles: C. C. P., sec. 1209; Alaska, Codes, pt. 4, c. 58, sec. 609; Arizona, C. C, pars. 1430, 1723, 1724, 2760, 2761; Idaho, C. C. P., sec. 3S22; Montana, C. C. P., sec. 2170; Nevada, Comp. Laws, sec. 3555; North Dakota, C. C. P., sec. 5934; Oregon, Codes and Statutes, sec. 662; South Dakota, C. C. P., sees. 172, 234, 330, 398, 409, 477, 483, 494, 518, 782, J. C. 88, 89, 90, 91; Utah, Rev. Stats., sec. 3358; Washington, Ballinger's Codes, sec. 4798; Wyoming, Rev. Stats., sees. 3694, 3696, 3849, 3S50, 4072, 4474, 4500, 4508, 4536. No. 567. — Affidavit — Juror After Being Summoned Improper- ly Conversing with a Person Relating to Merit of Action — Contempt. [Title of Court and Cause.] State of California, County of Butte, — ss. A. B., being duly sworn, says: That he is a deputy sheriff of the said county of Butte. That he summoned C. D. to serve as a juror in the above-entitled action; that after the said C. D. was summoned, as aforesaid, he improperly conversed with L. D. re- lating to the merits of said action ; that said conversation was had for the purpose of causing him to be disqualified to sit as a juror in the trial of said action. Wherefore, etc. [the same as in No. 366]. (All courts.) NOTE.— When summoned as a juror, it is a contempt to improperly converse about the merits of an action, civil or criminal. It is fre- quently done for the purpose of being disqualified: Cal C C P sec 1209, subd. 9, sec. 1212; Idaho, C. C. P., sec. 3819; Montana, C. C. p' sec. 2170; Nevada, Comp. Laws, sec. 3955; North Dakota, C. C. P.. sec! 5934; Oregon, Codes and Statutes, sec. 662; Utah, Rev. SUta_ sec 3353 • Washington, Ballinger's Codes, sec 4793. ' 39^ New Book of Forms No. 568. — Affidavit — Juror Unlawfully Conversing with a Per- son About Merits of Action — Contempt. [Title of Court and Cause.] State of California, County of Butte, — ss. A. B., being duly sworn, says : That he is plaintiff in the above- entitled action, and C. D. is a defendant in said action ; that said action is now, on this 3d day of June, 190^, on trial before said court before a jury [or that it zvas on a day given on trial; or Tvas set for trial, a jury impounded and hearing postponed to a gkfcn time] ; that £. P. is a member of said jury; that on said ^d day of June, said B. F., while a member of said jur>', improperly con- versed with G. H. in relation to the merits of said action. [^^^^e^efore. etc. [the same as in No. 366]. (All courts.) NOTE, — When a menibpr of a jnry, sneh condnct is conteraptnons un- less the juror immediately discloses such communication to the courts Cal. C. C. P., sec. 1209, subd. 9, sec. 1212; Idaho. C. C. P., see. 3819; Montana, C. C. P., sec. 2170; Nevada, Comp. Laws, sec. 3555; Oregon, Codes and Statutes, sec. 662; Utah, Rev. Stats., sec. 3358; Washin^n, Ballinger's Code, sec. 4798. No. 569. — Affidavit — V/itness Unlawfully Detaining — Con- tempt, [Title of Court and Cause.] ' State of California, County of Butte, — ss. A. B., beings duly sworn, says: That on June ^d, IQ03, he was in good faith served with a subpoena to attend on said June ^d, as a witness before the above-entitled court, which is a case where the disobedience of a witness to attend upon subpoena may be punished as a contempt. That on said June ^d said action was on the calendar for trial. That on said day, while afiFiant was on his way to the room where this court was then sitting, he was arrested bv M. L. S., constable of said Butte tonmship, upon a warrant of arrest issued by A. L. B., a justice of the peace of said township, in a civil action brought in said court to recover the possession of a dog pup, upon a complaint alleging that affiant had unjustly detained the pup to prevent its being fotmd. That affiant exhibited his subpoena to said constable, but he refused to permit affiant to obev said subpoena. \\nierefore. etc. [the same as in No. 366]. (All courts.) Affidavit. 397 NOTE. — rilifornin, C. C. P., sec. 1209, snbd. 8, sor. 1212. Witness not Piibic'ct to arrest when: Id., sec. 2007. Arrest in civil a(>tion: Id., sec. 479, subd. 3. A dog is property: Pen. Code, sec. 491; Alaska, Codes, pt. 4, c. 58, sec. 609; Idaho, C. C. P., sec. 3819; Montana, C. C. P., sec. 2170; Nevada. Comn. Laws, sec. 3.555; North Dakota, C. C, sec. 5934; Oregon, Codrs anrl Statutes, sec. 602; Utah, Rev. Stats., sec 3358; Wash- ington, Ballingcr's Codes, sec. 4798. No. 570. — Affidavit — Unlawful Interference with the Proceed- ings of a Court — Contempt, [Title of Court and Cause.] State of California, County of Bjitte, — ss. A. B., being duly sworn, says : That he is plaintiff in the above- entitled action, and C. D. is defendant. That said case is set for trial on June 5, iQOj, at 10 o'clock A. M., before the judge of said court sitting without a jury. That on May 25, 190 j), plaintiff caused E. P., a competent and material witness on plaintiff's be- half, to be subpoenaed to appear before said court at said trial. That on June 2, ipo^, said defendant dissuaded said witness from attending said court to testify on behalf of plaintiff in said action [or tJiat he dissuaded him not to attend after promising to at- tend zvithout subpoena; or that he threatened him with inquiry if he did attend; or tlmt he threatened a party to the action with injury if he attended; or offered to influence tJu court or jury on behalf of a p-arty.] That said witness did not attend at said trial because of said dissuasion. Wherefore, etc. [the same as in No. 566]. (All courts.) NOTE. — Such conduct is unlawful interference with the process or proceedings of a court: Cal. C. C. P., sec. 1209, snbd. 9, sec 1212. See In re Buckley, 69 Cal. 31, 10 Pac. 69; Ala.ska. Codes, pt. 4. c. .58. sec. 609; Idaho, C. C. P., sec. 3819; Montana, C. C. P., sec. 2170; Nevada, Comp. Laws. sec. 35.55; North Dakota. C. C. P., see. 59.34; Oregon, Codes and Statutes, sec. 662; Utah, Rev. Stats., sec. 3358; Washington, Bal- linger's Codes, sec. 4798. No. 571. — Affidavit — Rescuing a Person in the Custody of an Officer — Contempt. [Title of Court and Cause.] State of California, County of Butte, — ss. A. B., being sworn, says : That he is a deputy sheriff of the county of Butte. That under the authority of a warrant issued out of said court and by order of tlie judge thereof, and delivered 3q8 New Book of Forms. to him by the district attorney, he, on the jd day of June, ipoj, arrested and took into custody C. D., the person said warrant di- rected him to arrest, and bring before this court. That on tlie day of said arrest, the said C. D. was by E. P. and over thirty others, to affiant unknown, taken from the custody of affiant with violence and irresistible force. That affiant was disarmed and beaten by said B. F. and others. Wherefore, etc. [the same as in No, 566]. (All courts.) NOTE. — Ecseuing a person or property in the enstody of an officer by virtue of any order or process of a court is a contempt: Cal. C. C. P., sec. 1209, subd. 7, sec. 1212; Alaska, Codes, pt. 4, c. 58, sec. 609; Idaho, C. C. P., sec. 3819; Montana, C. C. P., sec. 2170; Nevada, Comp. Laws, sec. 3555; North Dakota, C. C. P., sec. 5934; Oregon, Codes and Statutes, sec. 662; Utah, Eev. Stats., sec. 3358; Washington, Ballinger'a Codes, sec. 4798. No. 572. — Affidavit — Referee Neglects to Take Testimony — Contempt. [Title of Court and Cause.] State of California, County of Butte, — ss. A. B., being duly sworn, says : That he is the plaintiflF in the above-entitled action. That on June 5, ipo^, said action was re- ferred to C. D. to take the testimony and report his finding and judgment. That he consented to act and did act to the extent of liearing all plaintifif's testimony and the submission of his case. That when said case was submitted on the part of plaintiff, to wit, on June 20, 190^, said referee announced that he would take de- fendant's testimony, commencing on June 22, ipbj, at a time and place then agreed upon by plaintiff and defendant. That at the time and place agreed upon said referee neglected to appear, and affiant has repeatedly requested him to take testimony for defend- ant so that the case might be reported back to the court ; but he ob- stinately refused, and does refuse, to proceed further in the mat- ter. Wherefore, etc. [the same as in No. 566]. (All courts.) NOTE. — California, C. C. P., see. 1209, subd. 3; Alaska. Codes, pt. 4, c. 58, sec 609; Idaho, C. C. P., sec. 3819; Montana, C. C.'P., sec. 2170; Nevada, Comp. Laws, sec. 3555; North Dakota, C. C. P., see. 5934; Ore- gon, Codes and Statutes, sec. 662; Utah, Eev. Stats., see. 3358; Wash- ington, Ballinger's Codes, sec. 4798. Affidavit. 399 No. 573. — Affidavit — Refusal of Permission to Take Copy of Entry of Account — Contempt, [Title of Court and Cause.] State of Calif ornkt,, County of Butte, — ss. A. B., being sworn, says : That he is the defendant in the above- entitled action. That on June j, 1905, the judge of said court made an order in writing that C. D., the plaintiff in said action, give affiant, within ten days from said ^d day of June, permission to take a copy of the account described in said order. That on the 4th, ^th, 6th, /th, 8th, pth, loth, 12th, i^th, days of said month of June, between the hours of 8 A. M. and 5 P. M., of said days affiant went to the place of business of said plaintiff, where said account is kept, to wit, plaintiff's grocery store. No. 975 Ma- ple street, in the town of Oroville, in said county, and demanded of plaintiff permission to take a copy of said account ; but each and every application was refused ; and when application was made on June ijth, affiant requested plaintiff to fix a day and hour when said copy could be taken ; but he refused to do so. Wherefore, etc. [the same as in No. 566]. , (All courts.) NOTE. — A party making such refusal may be punished for contempt: Cal. C. C. P., sec. 1000; Alaska, Codes, pt. 4, c. 58, sec. 609; Idaho, C. C. P., sec. 3819; Montana, C. C. P., sec. 2170; Nevada, Comp. Laws, sec. 3555; North Dakota, C. C. P., sec. 5934; Oregon, Codes and Statutes, sec. 662; Utah, Eev. Stats., see. 3358; Washington, Ballinger'a Codes, sec. 4798. No. 574. — Affidavit — Attorney Assuming to be Without Au- thority — Contempt, [Title of Court and Cause.] State of California, County of Butte, — ss. A. B., being duly sworn, says : That in the above-entitled action the name of C. D. is signed to the complaint as attorney for plain- tiff, and he has appeared in said action as such attorney. That said action is brought to obtain a divorce from plaintift''s alleged ■wife. That the said C. D. has not been admitted to practice law by the supreme court of the State of California, nor by the court in which said action is pending. Wherefore, etc. [the same as in No. 566]. (All courts.) 400 New Book of Forms. NOTE. — AssuniiTig to be an officer, attoraey, eoiinscl of a court, and acting as such without authority is a contempt: Cal. C. C. P., sees. 281, 1209, subd. 6, see. 1212; Alaska, Codes, pt. 4, c. 58, see. 609; Idaho, C. C. P., sec. 3819; Montana, C. C. P., sec. 2170; Nevada, Comp. Laws, sec. 3555; North Dakota, C. C. P., sec. 5934; Oregon, Codes and Statutes, sec. 662; Utah, Eev. Stats., sec. 3358; Washington, Ballinger's Codes, sec. 4798. No. 575. — Affidavit — Abuse of the Process of a Court — Con- tempt. [Title of Court and Cause.] State of California, County of Butte, — ss. A. B., being duly sworn, says : That he is the defendant in the above-entitled action. That C. D., the plaintiff, is an attorney at law. That defendant was indebted to plaintiff for the services described in said complaint ; but the amount of said indebtedness was the issue to be tried in said action. That defendant is the owner of unencumbered real estate standing of record in his own name in said county of Butte of the assessed value of over $50,000, and he has in said county unencumbered personal prop- erty of the value of over $40,000. That the amount involved in said action does not exceed $400, and the interests and costs which will not exceed $100. That said action is set to be tried on De- cember Jj, 1903. That on November j, 1905, defendant caused an attachment to be issued in said action and caused a trunk and valise belonging to defendant to be attached and taken from his possession, when he was on the platform of a railroad train ready to take the cars for Sacramento. That im.mediately after said at- tachment, and before the departure of the train, plaintiff said to afhant that he would release said attachment if affiant would give him a check for $2§o. That afhant gave plaintiff said check, and said attachment was released. Wherefore, etc. [the same as in No. 566]. (All courts.) NOTE. — Deceit or abuse of the process or proceedings of a court is a contempt: Cal. C. C. P., sec. 1209, subd. 4, sec. 1212; Alaska, Codes, pt. 4, c. 58, 609; Idaho, C. C. P., sec. 3819; Montana, C. C. P., sec. 2170; Nevada, Comp. Laws, see. 3555; North Dakota, C. C. P., sec. 5934; Ore- gon, Codes and Statutes, sec. 662; Utah, Bev. Stats., sec. 3358; Wash- ington, Ballinger's Codes, sec. 4798. AFFroAViT. 401 j^o. 576. — Affidavit — Subsequent Application for Order Once Refused — Contempt. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. A. B., being sworn, says: That he is the attorney for plaintiff in the above-entitled action. That defendant appeared in said action by C. D., his attorney, and demurred to the complaint. That said demurrer was overruled and defendant allowed to an- swer within ten days from June 3, 1905. That before said time had expired, defendant, by his said attorney, applied to the judge of said court for an order extending the time for serving and fil- mg said answer, and said judge extended said time to June so, ipoj. That on June jo, igo^, said attorney applied to said judge for a further extension of ten days, but said judge refused to ex- tend such time. That on the same day, notwithstanding said re- fusal, said attorney applied to the judge of the same court, to wit. Department No. g, and obtained an extension of time to answer as aforesaid, to July 8th, 1905. Wherefore, etc. [the same as in No. 566]. (All courts.) NOTE. — Under snch circnmstanees it ia contempt of court to make Buch application to any other jn'if:^e or conrt commissioner. This does not apply if the judge refuses the extension because of informality in the papers or proceedings necessary to obtain the order; or to mo- tions made with liberty to renew the same: Cal. C. C. P., sees. 1S2, 183; Idaho, C. C. P., sec. 3038; Montana, C. C. P., sec. 2170; Nevatla, Comp. Laws, sec. 3555; North Dakota, C. C. P., sec. 5934; Oregon, Codes and Statutes, sec. 662; Utah, B«v. Stats., sec. 3358; Washington, Bal- linger's Codes, see. 4798. No. 577. — Affidavit — Re-entry into Real Property After Eject- ment — Contempt. [Title of Court and Cause.] State of California, Count}' of Butte, — ss. A. B., being sworn, says : That he is the plaintiff in the above- entitled action, and C. D. is a defendant m said action. That on June 5, igoj, a judgment was rendered by said court restoring ])laintiff to the possession, and evicting said C. D. therefrom. That under the order of said court, based upon said judgment, said C. D. was on July i, IQO^, by the sheriff of said county of Butte, dispossessed from said premises, and plaintiff was by said New Forms — 26 402 New Book of Forms. sheriff placed .in possession thereof ; that on the loth day of said month of July, in the absence of plaintiff from said premises, said defendant re-entered into and took possession of said premises, and he is now in the possession thereof. Wherefore, etc. [the same as in No. 566]. NOTE. — ^Under such eireiimstancea, or where a person aids or abets in dispossessing an evicted person, he is guilty of contempt. The court will, after conviction for contempt, immediately issue an alias process directing the sheriff to restore the plaintiff, or his grantee, to the pos- session: Gal. C. C. P. sees. 1210-1212; Idaho, C. C. P., see. 3820; Mon- tana, C. C. P., sec. 2170; Nevada, Comp. Laws, sec. 3555; North Dakota, C. C. P., sec. 5934; Oregon, Codes and Statutes, sec. 662; Utah, Bev. Stats., sec. 3358; Washington, Ballinger's Codes, sec. 4798. No. 578. — Affidavit — Disobedience to Court's Mandate — Con- tempt. [Title of Court and Cause.] State of California, County of Butte, — ss. A. B., being duly sworn, says : That he is the attorney for plain- tiff in the case of F. P. H. v. L. & A., hereinafter referred to. That on June j, 190^, the superior court in and for said county of Butte issued a peremptory writ commanding C. D., a justice of the peace in and for the township of Butte, immediately after the receipt of said writ to issue execution on the judgment for plain- tiff in the action of F. P. H. v. L. & A. for $100 damages and costs, by said C. D. entered in the docket of said justice of the peace, on March g, 190^, and to deliver said execution to A. B., the attorney of the plaintiff in said action. That on said ^d day of June, affiant delivered the said writ to the said C. D., and requested him to immediately issue said writ; and thereafter, on the 4th, ^th, and 6th of said month of June, he made the same request, but said justice of the peace has not issued said writ. Wherefore, etc. [the same as in No. 566]. NOTE. — Disobedience of any lawful judgment or order of a court is a contempt: Cal. C. C. P., sees. 1209, 1211, subd. 5; Alaska, Codes, pt. 4, c. 58, sec. 609; Idaho, C. C. P., sec. 3781; Montana, C. C. P., sec. 21 TO; Nevada, Comp. Laws, sec. 3555; North Dakota, C. C. P., sec. 5934; Ore- gon, Codes and Statutes, sec. 662; Utah, Eev. Stats., sec. 3358; Wash- ington, Ballinger's Codes, sec. 498. Affidavit. 403 No. 579.— Affidavit— Willful Neglect to Enter Default by Clerk — Contempt. [Title of Court and Cause.] State of Colifornia, County of Butte, — ss. A. B., being duly sworn, says: That he is the attorney for plaintiff in the above-entitled action. That C. D. is the clerk of said court. That on June j, ipo^, the said action was tried in said court and judgment was ordered for plaintiff in the sum of $i,/63.30 and $112.30 costs. That the said clerk willfully neg- lected to enter said judgment at the time and in the form and manner as required by law. Wherefore, affiant prays for an order citing the said C. D. to show cause why he should not be punished for contempt, because of his violation of his duty as clerk of said court. NOTE.— The word "willfully," as used in section 1209, implies sim- ply a purpose or irillinfjness to commit the act or make the omission. It does not require any intent to violate the law or to acquire any ad- vantage: Pen. C, sec. 7. The elcrVc, 'f stubborn, capricious, obsti'nate, contumacious, perverse, self-willed or pig-headed, acted willfully: Cal. C. C. P., sec. 1209, subd. .?, sec. 1212; Alaska, Codes, pt. 4, c. 58, sec. 609; Idaho, C. C. P., sec. 3819; Montana, C. C. P., see. 2170; Nevada, Comp. Laws, sec. 3555; North Dakota, C. C. P., sec. 593 4; Oregon, Codes and Statutes, sec. 662; Utah, Rev. Stats., sec. 3358; Washington, Bal- linger's Codes, sec. 4798. No. 580. — Affidavit — Willf^'l'v Nep^lpcting to Serve a Subpoena •^Contempt, [Title of Court and Cause. J State of California, County of Butte, — ss. A. B., being duly sworii, says: That he is the attorney for de- fendant in the above-entitleJ action. That C. D. is the sheriff of said county. That said action was set for trial on June j, ig>Oj, at 2 o'clock P. M. That on June i, 1905, affiant delivered to said sheriff a subpoena issued by the clerk of said court in man- ner and form, and signed and sealed as by law required, com- manding him to subpoena £. F. to appear as a witness for plain- tiff on said 3d day of Jwne, as aforesaid. That said sheriff will- fully neglected to serve said subpoena. Wherefore, affiant prays for an order citing the said sheriff to show cause why he should not be punished for contempt, because of his said violation of his duty as sheriff. (All courts.) 404 New Book of Forms. NOTE.— California, C. C. P., sec. 1209, snbd. 3, see. 1212; Alaska, Codes, pt. 4, c. 58. see. 609; Idaho, C. C. P., sees. 3819-3833; Montana, C. C. P., sec. 2170; Nevada, Comp. Laws, see. 3555; North Dakota, C. C. P., sec. 5934; Oregon, Codes and Statutes, see. 662; Utah, Eev. Stats., sec. 3358; Washington, Ballinger's Codes, see. 4798. No. 581.— Affidavit— Attorney Willfully Neglecting His Duty — Contempt. [Title of Court and Cause.] State of Calif arnia, County of Butte, — ss. A. B., being duly sworn, says: That he is the defendant in the above-entitled action. That C. D. is now, and was, on June 3, 190^, an attorney at law, admitted to practice by the supreme court of the state of California. That on June 4, 1905, affiant employed said C. D. to defend said action ; and thereupon he drew and filed defendant's answer in said action. That on mo- tion of plaintiff and in conformity with law and the rules of said court said action was set for trial by a jury on December 10, 190^, at 10 o'clock A. M. That on December 5, 1905, said C. D. noti- fied affiant that said action would be tried on the day set. That on said December loth, at 10 o'clock A. M., affiant, with his wit- nesses, appeared in court. That said C. D. did not appear. That the plaintiff caused a jury to be impaneled, introduced his evi- dence, and such proceedings were had that in the absence of said C. D., who did not appear at the trial, a verdict and judgment were entered for plaintiff. Wherefore affiant prays for an order citing the said C. D. to show cause why he should not be punished for contempt because of his said violation of his duty as an attorney. (All courts.) NOTE. — Misbehavior in office, or other willful neglect or violation of duty by an attorney, clerk, sheriff, coroner, or other person elected or appointed to perform a judicial or ministerial office, is a contempt: Cal. C. C. P., sees. 1212, 1209, subd. 3; Alaska, Codes, pt. 4, c. 58, sec. 609; Idaho, C. C. P., sec. 3819; Montana, C. C, sec. 2170; Nevada, Comp. Laws, sec. 3555; North Dakota, C. C. P., sec. 5934; Oregon, Codes and Statutes, sec. 062; Utah, Rev. Stats., sec. 3358; Washington, Ballinger'es Codes, see. 4798. No. 582. — Affidavit — Refusal to Obey Court's Order. [Title of Court and Cause.] State of California, County of Sierra, — ss. 7. B., being duly sworn, says, that he is, and was during all the times hereinafter mentioned, the sheriff of said county of Sierra^ AFFroAViT. 405 flnlv elected and qualified ; that on the third day of May, A. D. 1905, J. S., superior judge in and for said county, duly made an order in said case that H. S. appear before him on the twenty- seventh day of April, IQ0§, and then and there submit himself to examination in said aetion in proceedings supplemental to execu- tion; which order, and the affidavit on which said order was based, are herein referred to and made a part hereof, and marked Ex- hibits "A" and "B" ; that in obedience to said order the said H. S. appeared in court as in said order directed, and on examination concerning his property, testified that he had on his person and under his control, a gold watch, a gold ring, and iifty cents in money, all of ivhich was his property. Thereupon the said court made an order that he deliver all of said property to affiant, as sheriff, to be applied toward the satisfaction of the execution in said action ; that petitioner was informed of said order, but re- fused to obey it, and he still does refuse to deliver any of said property to affiant to be applied on said execution as aforesaid, although said property is in his possession. Wherefore affiant prays that the said H. S. may be arrested and punished as for a contempt of this court. (All courts.) NOTE.— California, C. C. P., sec. 1209, snbd. 10; Id., sera. 720, 721; Alaska, Codes, pt. 4, c. 58, sec. 609; Arizona, C. C, pars. 1430, 1723, 1724, 2760, 2761; Idaho, C. C. P., sec. 3819; Montana, C. C. P., sec 2170; Ne- vada, Comp. Laws, see. 3555; North Dakota, C. C. P., sec. 5934; Oregon, Codes and Statutes, sec. 662; Utah, Bev. Stats., sec. 3358; Washington, Ballinger's Codes, sec. 4798. No. 583. — Affidavit of Attorney or Party to a Pending Action that the Action is Pending, and that the Testimony of Wit- ness Named is Necessary (Contempt Based upon It). State of California, City and County of San Francisco, — ss. A. B. C, being drly sworn, says : That he is the attorney for plaintiff in an action now pending in the superior court of said city and county, entitled F. G. v. H. G. That said action is to recover of defendant $3,527.50 on account of goods sold and de- livered to defendant. That said D. F., zvitncss, ordered said goods in the name of and as the agent of H. G., defendant, and it is to prove the fact of said agency, order and delivery that the deposit tion of said D. F. is to be taken. That D. F. is a resident of said city and county, and is a material witness for plaintiff in said ac- tion. Wherefore plaintiff requests that you issue a subpoena for the attendance of said D. F. before you, on the 3d day of May, jpo^, for the purpose of having his deposition taken. (All courts.) 40& New Book of P'orms. NOTE.— California. C. C. P., sec. 1986. j^JTidnvit to Obtain Subpoena. — The forog'oinjT form was not drawn to conform to a sta.tute, but to give a notary public written au*^liority to issue a subpoena and to be used in proceedings to punish a witness should he fail to appear. There is always some danger that the un- scrupulous may cause notaries to innocently issue process for the pur- ]-ose of annoyance; but if an affidavit of good faith is exacted, the dan- ger of such oppression will be greatly lessened. In deciding the case of Burns v. Superior Court, 140 Cal. 1, 73 Pac. 597, the supreme court refers to that danger and suggests that if charges of contempt are preferred against contumacious witnesses, it might be necessary for the court is- suing contempt process to see that the facts showing the materiality of the testimony are fully and particularly set forth in the affidavit before issuing the citation. In preparing the form it was thought that it would be an excellent plan to proceed as herein suggested. It is thought that this method will dispense with the full statement of facts sug- gested in the opinion referred to. No. 584. — Affidavit — Contempt Committed. [Title of Court and Cause.] /. B., being duly sworn, says, that he is over 21 years of age. That on the 2d dayoi January, ipoj, in the city and county of San fra)icisco, state of California, he served a subpoena on D. E., Esq., issued by /. M., notary public in and for the city and county of San Francisco, state of California, on the part of plaintiff, commanding the said D. B., Esq., to appear at the oMce of said notary public in the Merchants' Exclmnge Building,^ on the jd day of May, ipo^, at the hour of 10 o'clock A. M., as a witness on behalf of plaintiff; that the said D. B. did not demand his fees as a witness ; that when the said D. B. was served as aforesaid he said that he would not appear, and that if the said notary wanted him he might send a carriage, and he would then con- sider whether he would obey said subpoena; that the said D. B. has not obeyed said subpoena, and did not appear as a witness this day. Wherefore aflfiant prays that a warrant may be issued for the arrest of the said D. B., and that he may be dealt with as provided by law. (All courts.) NOTE.— California, C. C. P., sec. 1212. Affidavit That a Contempt Has Been Committed. — In Burns v. Superior Court, 140 Cal. 1, it is held that a notary public has authority to issue a subpoena for a witness to appear before him and give his deposition to be used in an action pending in a state court. The court in which the action is pending has inherent power to punish the witness for contempt. The theory is that a refusal to permit a deposition to be taken or to give a deposition is "obstructing" the business of the conrt in which the action is pending. The case of Levinsky v. Superior Court, 72 Cal. 510, is overruled in so far as it conflicts with the ease of Burns v. Superior Court. Affidavit. 407 No. 585. — Affidavit for Continuance, [Title of Court and Cause,] State of California, County of Sacramento, — ss, A. B., being duly sworn, says : That he is the defendant in the above-entitled action; that he cannot safely go to trial before ninety days from the date hereof, on account of the absence of A. L. P., who is a material witness for defendant; that a subpoena in said cause was duly issued on the ist day of March, 190&, and placed in the hands of A. B. for service on the same day; that on the second day of said month of March, the said sub- poena was by said constable duly served on the said A. L. P., in said county; that said subpoena commanded the said A. L. P., to be present in this court at the hour of ten o'clock A. M. of this day, to testify on behalf of defendant; that after said subpoena was served the said A. L. P. was taken violently sick and was re- moved from said county, and is now at Coronado Beach in the county of San Diego, in said state, and is too sick to submit to ex- amination by deposition; that the evidence of the said A. L. P. is material for defc^idant's defense; that he will prove by said wit- ness that [here state the facts the witness will testify to]. And defendant says that the said facts cannot, to his knowledge, be proved by any other witness ; and that the application is not made for delay, but that justice may be done in the premises, and affiant believes that, if this case be continued for three months, he will be able to have said witness present to testify as aforesaid. (All courts.) NOTE.— California, C. C. P., sees. 595, 596; Arizona, C. C, pars. 1383. L3S4, 1386, 2076; Idaho, C. C. P., sec. 3457; Montana, C. C. P., see. 1593- Nevada, Comp. Laws, see. 3255; North Dakota, C. C. P., see. 5755a; Ore- gon, Codes and Statutes, sec. 115; Utah, Eev. Stats., see. 3133; Washing- ton, Ballinger's Codes, see. 4977; "Wyoming, Rev. Stats., see. 4279. No. 586. — Affidavit to Creditor's Claim — Corporation Partner- ship. [Title of Court and Estate.] State of California, County of Napa, — ss. /. L., being first duly sworn, deposes and says : That [the cor- poration or partnership] whose foregoing claim is herewith pre- sented to the [executor or administrator of said deceased, is a (A) corporation organized under the laws of the state o«f' Cali- fornia, or is a partnership, etc.] ; that affiant is (B) [the presi- 4o8 New Book of Forms. dent, secretary, or a member of said partnership] and knows of his own knowledge all the facts of said claim, or he makes this affidavit on behalf of said /. L., who is absent from the state, af- fiant knowing all the facts of said claim [or any other good rea- son] and for that reason he makes this affidavit on behalf of said (C) [corporation, etc.]. That the amount of said claim, to wit, the sum of [one thousand dollars], is justly due to the said claimant, that no payments have been made thereon which are not credited, and that there are no offsets to the same to the knowl- edge of said affiant. (See "Claims.") (A) Pirm or corporation as the case may be; insert names of indl- vidnals composing copartnership; if a corporation, so state, giving name of state in which same was organized. (B) State fully capacity in which affiant acts. If a member of a firm, say so; if a managing agent, state why it is not sworn to by one of the principals; if an officer of a corporation, state what officer; if an individual claimant, so state. (C) Firm or corporation. NOTE.— California, C. C. P., sees. 1494-1503; Alaska, Codes, pt. 4, e. 84, sec. 822; Arizona, C. C, par. 1743; Idaho, C. C. P., sec. 4137; Mon- tana, C. C. P., sec. 2604; Nevada, Comp. Laws, sec. 2894; North Dakota, Probate Code, see. 3402; Oregon, Codes and Statutes, sec. 1160; South Dakota, Probate Code, sec. 171; Utah, Rev. Stats., sees. 3852-3944; Wash- ington, Ballinger's Codes, sec. 6229; Wyoming, Rev. Stats., sees. 4751- 4758. No. 587. — Affidavit to Creditor's Claim. [Title of Court and Estate.] County of Butte, — ss. State of California, J. B., being duly sworn, says that he is the /. B. in the afore- said claim mentioned. That he knows the contents of said claim and it is true. That the amount of said claim, to wit, $10,000, is justly due claimant ; that no judgments have been made thereon [which are not credited] ; and there are no offsets to the same to the knowledge of said affiant. (See "Claims.") NOTE.— California, C. C. P., sees. 1494, 1563; Arizona, C. C, par. 1743; Idaho, C. C. P., see. 4137; Montana, C. C. P., sec. 2604; Nevada, Comp- liaws, sec. 2894; North Dakota, Probate Code, sec. 3402; Oregon, Codes and Statutes, sec. 1160; South Dakota, Probate Code, see. 171; Utah, Rev. Stats., sees. 3852-3944; Washington, Ballinger's Codes, see. 6229; "Wyoming, Eev. Stats., sees. 4751-4758. I Affidavit. 409 No. 588. — Affidavit that Creditor had No Notice, etc [Title of Court and Estate.] State of California, County of Butte, — ss. J. S., being first duly sworn, deposes and says : That he, whose foregoing claim is herewith presented to the executor of said deceased, is a resident of the city of Rochester, state of New York; or, that affiant is. That he had no notice of the death of said deceased until more than one year from the date of the first publication of notice to creditors in this estate by reason of af- fiant being all said time of publication out of this state and in the state of New York. That decree of distribution has not been en- tered in said estate, and for that reason he makes this affidavit. That the amount of said claim, to wit, the sum of one thousand dollars, is justly due to the said claimant ; that no payments have been made thereon which are not credited ; and that there are no ofTsets to the same to the knowledge of said affiant. NOTE.— California, C. C. P., sec. 1493; Idaho, C. C. P., sees. 4136, 4137; Montana, C. C. P., see. 2603; Nevada, Comp. Laws, sec. 2893; North Dakota, Probate Code, see. 3401; South Dakota, Probate Code, sec. 170; Utah, Rev. Stats., sec. 3851; Wyoming, Rev. Stats,, sees. 4751-4758. No. 589. — Affidavit — Attachment to Procure Order of Exam- ination. [Title of Court and Cause.] State of California, County of Butte, — ss. /. C. S., the plaintiff in the above-entitled action, being duly sworn, says, that an attachment lias been issued in this action, tvhich fias not been returned; that he has been informed, and he believes, and therefore avers, that one H. S. has in his possession and under his control the following described property belonging to defendant [description] ; and garnishment has been served on the said H. S. in manner and form as required by law. Wherefore, he prays for an order d're^-tinfr the snid H. S. to nppear before this court and be examined under oatli respecting the same. (All courts.) NOTE.— California, C. C. P., sec. 545; Alaska Codes, pt. 4, e. 14, se*, 156; Arizona, C. C, pars. 2586, 2587; Idaho, C. C. P., sec. 3302; Montana, C. C. P., sec. 901; Nevada, Comp. Laws, sec. 3226; North Dakota, C. C. P., sec. 5366; Oregon, Codes and Statutes, sec. 304; South Dakota. C. C. P., sec. 400; Utah, Rev. Stats., sec. 3091; Washington, Ballinger's Codes, seca. 5363-5392. 4IO New Book of Forms. No. 590. — Affidavit — Order for Examination of Debtor of Judgment Debtor. [Title of Court and Cause.] State of California, County of Napa, — ss. /. S., being duly sworn, says: That he is one of the plaintiffs in the above-entitled action ; that the said plaintiffs, on or about the nineteenth day of August, 1905, recovered a judgment in said action in the superior court of the county of San Joaquin, state of California, against the defendants in said action, for eight hundred dollars or thereabouts, for damages and costs, which judgment was duly entered and docketed in the office of the clerk of said court, in said county of San Joaquin; that an execution against the property of the said defendants was duly issued there- upon, and delivered to the sheriff of said county of San Joaquin, being the county where said defendants then and still reside, and in which the judgment-roll in said action is filed, to be executed according to law ; that said execution has been duly returned by said sheriff, and filed in the office of the clerk of said court zvholly unsatisfied and unpaid; and that the said judgment still remains in full force and effect, wholly unsatisfied, and not reversed, va- cated, or set aside or appealed from. That as affiant is informed and verily believes, /. H. has prop- erty belonging to said judgment debtors, exceeding in value tzvo hundred and fifty dollars, which he unjustly refuses to apply toward the satisfaction of the said judgment, and is indebted to the said judgment debtors in an amount exceeding fifty dollars, and resides in said county. (All courts.) NOTE. — California, C. C. P., sees. 714-721; Alaska, Codes, pt. 4, c. 31, sec. 295; Arizona, C. C, pars. 2586, 2587; Idaho, C. C. P., sees. 3562, 3503; Montana, C. C. P., sees. 1261, 1272; Nevada, Comp. Laws, sees. 3335, 3336; North Dakota, C. C. P., sec. 5564; Oregon, Codes and Stat- utes, sees. 254-259; South Dakota, C. C. P., sees. 400, 403; Utah, Rev. Stats., see. 3273; Washington, Ballinger's Codes, sec. 5392; Wyoming, Eev. Stats., sees. 3940-3948. No. 591. — Affidavit for Examination of Judgment Debtor. [Title of Court and Cause.] State of California, County of Butte, — ss. /. JI. P. G., being duly sworn, says: That he is the plaintiff in the above-entitled action ; that the said plaintiff, on or about Affidavit. 411 the nineteenth day of April, recovered a judgment in said action in the superior court of the city and county of San Francisco, against the defendant in said action, for four tJiousand and twcnty- fiz'e dollars, United vStates gold coin, or thereabouts, and for dam- ages and^ costs, which judgm.ent was duly entered and docketed in the office of the clerk of said court, in the said city and county of .S"a;/ Francisco, being the county where the said defendant then resided, and in which the judgment-roll in said action is filed, to be executed according to law. That the said judgment still remains in full force and eflFect, wholly unsatisfi^, and not reversed, vacated, or set aside ; that on the twenty-third day of April, igoj, an execution upon said judg- ment was issued to the sheriff of said city and county, and said execution has been returned unsatisfied. That as affiant is informed, and verily believes, the said defend- ant now resides in said city and county, and has property which he unjustly refuses to apply toward the payment or satisfaction of the said judgment. NOTE.— California, C. C. P., sees. 714-721; Arizona, C. C, par 2586 2587; Idaho, C. C. P., sees. 3562, 3563; Montana, C. C. P., sees. 1261-2172' Nevada, Comp. Laws, sees. 3335, 3336; North Dakota, C. C. P., see 5564- Oregon, Codes and Statutes, sees. 254-259; South Dakota, C. C P sec' 400; Utah, Eev. Stats., see. 3273; Washington, Ballinger's Codes,' sec! 5392; Wyoming, Rev. Stats., sees. 3940-394i8. No. 592.— Affidavit— Time to be Shortened for Notice to Take Deposition. [Title of Court and Cause.] State of California, County of Sacramento, — ss. A. B., being duly sworn, deposes and says: I. I am the plaintiff in the above-entitled action. II. The summons in said actian has been served. P. Q. is a witness material and necessary for me on the trial of said action zinthout the benefit of whose testimony I cannot safeiy proceed to tnal; said witness resides in t}%c county of Mariposa, and is about to leave said county where said action is pending and is to be tried, and will probably continue absent when his testimony is required [or state other facts showing that the case is within the statute] ; or said witness is too infirm to attend the trial; or said testimonv will be required upon a' motion [stating it] ; or said ztntncss is the only one, a fact material to the issue [stating what the fact is]. III. I am informed and believe that it is the intention of said witness to depart from said county on the tenth dav of August, 1905. I was not aware of his intended departure in time to give 412 New Book of Forms. ■five days' notice of the time and place of taking his deposition; and the attorneys for the said defendant reside at Grass Flat, in said county. (All courts.) NOTE.— California, C. C. P., sees. 1005, 1054, 2031, 2038; Alaska, Codes, pt. 4, c. 63, sees. 652-658; Arizona, C. C, pars. 1906-2510; Idaho, C. C. P., sec. 3744; Montana, C. C. P., see. 1897; Nevada, Comp. Laws, sees. 3586-3594, as to notices generally; North Dakota, C. C. P., sec. 5306; Oregon, Codes and Statutes, sec. 835; Utah, Eev. Stats., sees. S325- 3456. No, 593. — Affidavit — Executor's Bond Insufficient. [Title of Court and Estate.] State of California, County of Yuba, — ss. A. B., being sworn, says : That he is a creditor of the above- entitled estate. That his claim has been presented to the adminis- trator of said estate ; has been approved by him, and also by the judge of said court, and is on file as an approved claim, and no part of it has been paid. That affiant has been informed that C. P., one of the sureties on the bond of said administrator, is insol- vent, and upon said information he made diligent investigations and he believes that said C. F. is insolvent. NOTE. — The above affidavit need not be in a positive form or in any form approaching positiveness; because a judge may "of his own mo- tion" issue a citation for the administrator to appear and answer. It is intended that the information under which the judge moves must come from an interested person or of his own motion founded upon his own obser\'ation or hearsay. If the facts are as he is led to believe, he must order further security. The foregoing remarks apply to all bonds filed in probate cases: Cal. C. C. P., sec. 1394; Alaska, Codes, pt. 4, c. 81, sec. 785; Arizona, C. C, par. 1681; Idaho, C. C. P., sees. 4068, 4072; Montana, C. C. P., sec. 2480; Nevada, Comp. Laws, sec. 2840; North Dakota, Probate Code, sec. 6360; Oregon, Codes and Statutes, 820, 1123; South Dakota, Probate Code, sees. 113, 119; Utah, Eev. Stats,, sec. 3832; Washington, Ballinger's Codes, see. 6153; Wyoming, Eev. Stats,, sees. 4663, 4064, 4670, 4671, 4679. No. 594. — Affidavit for Order Shortening or Extending Time for Examination of Witness. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. /. D., being duly sworn, says that he is one of the plaintiffs in the above-entitled action ; that the summons in said action has AFFroA viT. 4 1 3 been sen-cd ; that W. B. is a witness material and necessary for the said plaintiff on the trial of said action ; that said witness re- sides in the county of Placer and is about to leave the said county of Placer and remoz'e to the territory of Arizona, and Ive will con- tinue absent from this state when this case comes on for trial; and affiant liad tw knowledge or information of his intended de- parture from this state until this day. The said witness intends to start for the said territory on the fifteenth day of this )nonth; that affiant was not aware of the said intended departure in time to give five days' notice of the time and place of taking his, said witn-ess' deposition; and that the attorney for the said defendant resides at the city and county of San Francisco; [or that the wit- ness resides out of the county; or that he is too infirm to attend the trial; or his testimony is required upon a motion stating what it is; or that the witness is the only om who can establish mate- rial facts, stating ivliat they are]. (All courts.) NOTE.— California, C. C. P., sees. 1005, 1054, 2031, 2038; Alaska, Codes, pt. 4, e. 63, see. 652; Arizona, C. C, pars. 1906. 2506, 2510; Idaho, C. C. P., sec. 3744; Montana, C. C. P., see. 3360 (in the state); Nevada, Comp. Laws, see. 3503; North Dakota, C. C. P^ sees. 5298, 5722- Utaiu Rev. Stats., sees. 3325, 3456. No. 595. — Affidavit — Deposition — Commission to Examine Witness, [Title of Court and Cause.] State of California, County of Butte, — ss. /. D., the plaintiff in the above-entitled action, being duly sworn, says : That the summons in the said action has been served, and the defendant has appeared [or a question of fact has arisen in this proceeding], and that IV. C. is a witness material and necessary for the said plaintiff on the trial of the said action; that said witness resides in the city of New York, in the county of Nezv York, in the state of New York, and is out of this state, and will continue absent when his testimony is required, (All courts.) NOTE.— The testimony of a witness out of the state may be taken by deposition, in an action, at any time after the service of the sum- mons or the appearance of the defendant; and, in a special proceeding, at any time after the question of fact has arisen therein: Cal. C. C. P ' Bees. 2020, 2021. The same form in California, in justice's court, but under different resrulations in taking a deposition. The affidavit in California is unnecessary except under a rule of court. The same rule usually elsewhere: Alaska, Codes, pt. 4, c. 61, sees. 645-651; Arizona, C. C, pars. 2506-2526; Idaho, C. C. P., sec. 2524; Montana, C. C. P., sec. 3340; Nevada, Comp. Laws, sees. 3504, 3507; North Dakota, C C P sec. 5671; Utah, Rev. Stats., sec. 3450. 414 New Book of Forms. No. 596. — Affidavit — General, State of California, County of Nez-ada, — ss. JV. J., being duly sworn, says : That on the first day of July, igo6, I resided at Grass Valley, in said county; that at the time last aforesaid IV. H. P. was a resident of the same place. I was well acquainted with the said P. until his death, which occurred on the day aforesaid. Previous to this, the said P. informed me that he was the only son of H. P. P., of Rochester, state of New York. At the time of his death he was about forty years old. He had light liair afvd blue eyes. He weighed about one hundred and eighty pounds. I am ready to testify to the foregoing mat- ters at any time when called upon to do so. My age is seventy- three, and I reside at Red Dog, in said county. XOTE. — This is the usual form of affidavits ^ven by persons know- ing certain facts, for the use of those who contemplate legal proceed- ings, or who desire the information for other purposes. Isjo. 597. — AfFidavit — Infant is Imperiled — Appointment of Guardian. [Title of Court and Estate.] State of California, Coimty of Alameda, — ss. A. B., being duly sworn, says : That he has petitioned the above- entitled court to be appointed guardian of the person and estate of M. C. B., a minor orphan child of C. B. L., deceased. That notice has been given as ordered by said court to A. B. L., the person havng the care of said minor, and to all relatives of said minor residing in said county. That the hearing of said applica- tion has been set before said court for Monday, June 5, IQ06. That affiant is an uncle of said minor, and is interested in her welfare. That she is fourteen years of age, and affiiant believes that she will be imperiled if permitted to remain with the person having the care of her. That said person is A. B. L., the widow of said C. B. L., and said minor's stepmother. She, said A. B. L., is addicted to excessive use of intoxicating liquors, and she frequents places where racing bets are made when she is intoxi- cated, and affiant has since and before the death of her said hus- band seen said minor in her company at such resorts. She, the said A. B. L., also smokes cigarettes and chews tobacco, and is altogether out of order with good, clean people. Wherefore, affiant asks the court to make an order providing for the temporary custody of said minor until a hearing can be had on such petition. Affidavit 415 NOTE. — The "peril" need not be as imminent as imagined in the form to move a court to rescue a minor wlio is in danger. The court has power, under the impulse of convincing facts, to grant the prayer of the adidavit. The ap[)lication may be by verified petition or by affidavit. The court would make the order requested in the absence of any praver: Cal. C. C. P., sec. 1747; Alaska, Codes, pt. 4, c. 88, sees. 887-917; Arizona, C. C, pars. 1945-1984; Idaho, C. C. P., sec. 4353 (Idaho is minus a statute expressly relating to such emergencies, but under section 3042, Code of Civil Procedure, such orders may be made. In any event they will be good until the guardian is appointed in the regular manner); Montana, C. C. P., sec. 2950; Nevada, Corap. Laws, pecs. 566-509, 591; North Dakota, Probate Code, sees. 6537-6587; Oregon, Codes and Statutes, sees. 52.38-5290; South Dakota, Probate Code, sees. 366-435; Utah, Kev. Stats., sec. 82. When jurisdiction is given the means to apply it is always implied: Id., sec. 720. No. 598. — Affidavit — Guardian Refuses to Properly Support Ward, [Title of Court and Estate.] State of California, County of Napa, — ss. A. B., being sworn, says : That C. D. is the appointed, qualified and acting guardian of the person and estate of A. M., the minor son of C B., deceased. That he was appointed by the said su- perior court of the county of Napa on June j, 1905. That said minor is possessed of an estate which nets him $100 a month ; that affiant is an uncle of said minor, and is interested in his welfare. That said minor is sixteen years of age, strong and healthy, and mentally sound, also gentle, obedient and affectionate. That said guardian has been requested by petitioner and other relations to send his ward to the public schools, but he refuses to do so, but attempts to educate him at home, he, the said guardian, being the only teacher he has had since letters of guardianship were issued to said guardian. That he, the said guardian, is doing what he thinks is the proper thing to do, but he is himself uneducated, and uxuisually ignorant of arithmetic, grammar, writing and spelling. Wherefore, affiant requests the court to cite the said guardian to appear and show cause why said minor is not sent to the public schools [or why he should not be rem-oved]. NOTE. — Whenever a guardian fails, neglects or refuses to furnish suitable and necessary mainten.ince, support or education for his ward, the court may order him to do so, and may enforce said order by proper process: Cal., C. C. P., sec. 1771; Alaska, Codes, pt. 4, c. 88, sees. 887- 917; Arizona, C. C, par. 1991; Idaho, C. C. P., sec. 4394; Montana, C. C. P., sees. 2958, 2983; Nevada, Comp. Laws, sees. 569-591; North Dakota, Probate Code, sees. 6537-6587; Oregon, Codes and Statutes, «ees. 5258-5200; SontH Dakotn, Probate Code, sees. 366-435; Utah. Rev. S^tats., sees. 1962, 1963, 40U3, 4005, 4007; Wa.sbington, Ballinger's Codes, fc.c. 64U7. 4i6 • New Book of Forms. No. 599. — Af&davit of Administrator — Inventory and Appraise- ment. [Title of Court and Estate.] State of California, County of Butte, — ss. M. J., the administratrix of the estate of T. J., deceased, being duly sworn, says that the annexed inventory contains a true state- ment of all the estate of the said deceased which has come to the knowledge and possession of said administratrix, and particularly of all moneys belonging to the said deceased, and of all just claims of tlie said deceased against the said administratrix. [Attached to inventory.] No. 600. — Affidavit of Appraisers — Inventory and Appraise- ment. [Title of Court and Estate.] State of California, County of Butte, — ss. F. H., E. B. and W. L. C, duly appointed appraisers of the es- tate of T. J., deceased, being duly sworn, each for himself, says, that he will truly, honestly, and impartially appraise the property of said estate which shall be exhibited to him, according to the best of his knowledge and abihty. [Attached to inventory.] No. 601. — Affidavit of Appraisers to Their Bill for Services. State of California, County of Butte, — ss. F. H., B. B. and W. L. C, the appraisers above named, being duly sworn, each for himself, says, that the foregoing bill of items is correct and just, and that the services have been duly rendered as therein set forth. [Attached to inventory.] Affidavit. 417 No. 602. — Affidavit — Service of Notice of Petition for Probate of WilL [Title of Court and Estate,] State of California, County of Butte, — ss. A. B., being sworn, says that he is over the age of twenty-two years, and competent to be a witness in said estate proceedings. That on the ^th day of May, ipo6, he served notice of the time and place appointed for the hearing of the petition for the probate of the will of said deceased filed in said estate, upon A., B., C, D. and £., the heirs of said testator, residents of the said state at tlieir places of residence [stating the place where directed as ap- pears in the petition], and deposited copies of the said notices in sealed envelopes in the postoffice of city and county directed severally to each of said heirs at their said residences with the postage paid on each letter, on April 20, ipo6. A copy of said notice is hereto attached and made part hereof. NOTE. — In California copies of the notice of the time appointed for the probate of the will must be addressed to the heirs of the testator resident in the state, at their places of residence, if known to the peti- tioner, and deposited in the postoffice, with the postage thereon pre- paid, at least ten days before the hearing. If their places of resi- dence be not known, the copies of notice may be addressed to them, and deposited in the postoffice at the county scat of the county where the proceedings are pending. A copy of the same notice must in like manner be mailed to the person named as executor, if he be not the petitioner; also, to any person named as coexecutor not petitioning, if their places of residence be known. [Proof of mailing the copies of the notice must be made at the hearing. Personal service of copies of the notice at least ten days before the day of hearing is equivalent to mailing.] California, C. C. P., see. 1304; Arizona, C. C, pars. 1605, 1606; Idaho, C. C. P., sec. 4001; Montana, C. C. P., sec. 232.5; Nevada, Comp. Laws, sec. 2795; South Dakota, Probate Code, sees. 39, 40; Utah, Rev. Stats., sees. 3789, 3442; Washington, Ballinger's Codes, sees. 6081- 6083. No. 603. — Affidavit (Oath) of Executor or Administrator. [Title of Court and Estate.] I, A. B., do solemnly swear that I will perform, according to law, the duties of [administrator or executor] of the will [or es- tate of] C. D., deceased. NOTE.— California, C. C. P., sec. 1383. The "oath" (affidavit) must be attached to the letters. As far as a "time limit" put upon the writer of this note would permit, examination of the legal authorities of many states shows there is only one place where an administrator New Forms — 27 41 8 New Book of Forms. or executor is required to add to the forejrnlnsj affidavit the words "That he vrill support the constitution of the United States and the constitution of the state of California," and that place is the probate department of the superior court of the city and county of San Fran- cisco, state of California. No reason is given for the use of those superfluous -words except that the municipal printer uses an ancient stereotyped form in which they are east: Arizona, C. C, par. 1666; Idaho, C. C. P., sec. 4061; Montana, C. C. P., sec. 2470; Nevada, Comp. Laws, sec. 2839; North Dakota, Probate Code, sec. 6347; South Dakota, Pro- bate Code, sees. 99, 100; Utah, Kev. Stats., sec. 3826; Washington, Bal- linger's Codes, sec. 6146. No. 604- — Affidavit of Publication of Notice — Sale of Real Es- tate. [Title of Court and Estate.] SCHEDULE "B"— PART OF FORM NO. 1526, P. 904. State of California, City and County of San Francisco, — ss. C. W. C, of said city and county, being duly sworn says, that he is over the age of eighteen years, not interested in or a party to the estate of T. /., deceased. That he is the principal clerk and bookkeeper in the office of the publishers of the D. E. B., a newspaper printed and published in said city and county, and as such clerk and bookkeeper has charge of all advertisements in said newspaper. That a true, full, and correct copy of the annexed notice of the time and place of holding the sale of real estate ordered by the superior court of the city and county of San Francisco, in the matter of said estate, on the seventh day of December, 1905, was published in said newspaper for three weeks successively next be- fore the day of sale mentioned in said notice and as often dur- ing the period of said three successive weeks as the said paper was regularly issued, to wit: daily from the eighth day of De- cember, IQO^, to and until the fourth day of January, ipo6, both days inclusive. (See "Return.") No. 605. — Affidavit of Sale of Real Estate. [Title of Court and Estate.] SCHEDULE "C"— PART OF FORM NO. 1526, State of California, City and County of San Francisco, — ss. S. P. M., of said city and county, being duly sworn, says, that he is an auctioneer, duly authorized by law to sell real and per- Bonal property at public auction or vendue, residing and doing i Affidavit. 419 business in said city and county, and mentioned in the annexed notice ; that at the time and place specified in said notice, to wit, on Monday, the fourth day of January, 1905, at twelve o'clock, M., and at the auction salesrooms of said auctioneer, at 314 Montgomery street, in said city and county, at the instance and by the direction of M. J., the administratrix of the estate of T. /., deceased, said auctioneer, for and on behalf of said estate, oflFered for sale in one parcel, to the highest bidder, upon the following terms, to wit, for cash, subject to confirmation by the superior court of the city and county of San Francisco, the real estate described in said notice, and sold the sawe to S. W., for the sum of three thousand and one hundred dollars, he being the highest and best bidder for the same, and that being the highest and best sum bid ; that the said sale was legally made and fairly con- ducted ; that the sum bid is not disproportionate to the value of the property sold, and that, as this affiant believes, a sum exceed- ing such bid at least ten per cent, exclusive of the expenses of a new sale, cannot be obtained. (See "Return.") No. 606. — Affidavit of Sale of Real Estate. [Title of Court and Estate.] SCHEDULE "D"— PART OF FORM NO. 1526, R 904. State of California, County of Alameda, — ss. Account of sales of real estate belonging to the estate of T. J., deceased, made by S. P. M., auctioneer, at his auction salesrooms, ^14 Montgomery street, on the fourth day of Ja>iuar\', IQ06, at twelve o'clock M., at the instance and by the direction of M. J., the administratrix of the estate of T. J., said deceased, who be- ing duly sworn, says : That the following statement is true : Description. Name of Purchaser. Sum Bid. S. W $3,100 00 $3,100 00 CHARGES. Ad^'crHsing in Report $2^ 00 Posting notices -50 Commissions, as per agreement /j 00 102 50 Net Proceeds ; $-^,997 ■ 50 ^2o New Book of Forms. No. 607, — Affidavit of Principal Clerk — Publication of Notice of Sale of Personal Estate — Schedule. [Title of Court and Estate.] SCHEDULE "B"— PART OF FORM NO. 1527, P. 906. State of California, City and County of San Francisco, — ss. C. B., of said city and county, being duly sworn, says : That he is over the age of eighteen years ; not interested in the estate of T. J., deceased, and is not a party thereto. That he is the principal clerk and bookkeeper in the ofUce of the publisher of the D. Press, a newspaper published in said city and county, and as stuh clerk and bookkeeper has charge of all ad- vertisements in said newspaper. That a notice, of which the annexed is a true copy (insert copy), was published in said news- paper for at least ten days, and as often during the period of said ten days as said newspaper was regularly issued, to wit, daily, Sundays excepted, from the fourteenth day of August, igo6, to and until the twenty-fifth day of August, ipo6, (both days in- clusive) [or, if the affidavit is of posting, then, omitting the words within the last brackets, say:] That a notice, of which the annexed is a true copy, wa^ posted by him on the fourteenth day of Aug- ust, igo6, in three public places in said city and county, to wit, one at the United States PostofHce, one at the Hall of Justice, and one at the auction salesrooms of J. M. & S., in said city and county (or at whatever places notice was posted). (See "Return.") No. 608. — Affidavit of Auctioneer or Return of Sale of Personal Estate. [Title of Court and Estate.] SCHEDULE "C"— PART OF FORM NO. 1527, P. 906. State of California, City and County of San Francisco, — ss. /. M., of said city and county, being duly sworn, says : That he is a member of the firm of J. M. & S., auctioneers in said city and county; that the property mentioned in the annexed notice was sold by said auctioneers to the highest bidders, for cash, at the place mentioned in said notice, on the Piventy -fifth day of August, igo6, the sales commencing at twelve o'clock M. Affidavit. 42 1 TTint all of said property was present at the time of selling ; that the said sales were legally made and fairly conducted, and that the sums bid were not disproportionate to the value of the property sold. '^I'hat the account of sales attached to this affidavit is true and correct. (See "Return.") No. 609. — Affidavit of Auctioneer or Return of Sale of Per- sonal Estate. [Title of Court and Estate.] ACCOUNT OF SALE— PART OF FORM NO. 1527, P. 906. State of California, County of Alameda, — ss. Name of Article Sold. Name of Purchaser. Amount Bid, I Gold Watch and Chain IV. B $ 106 00 2^ Shares Zenith G. and S. Mining Co. D. F ^,3-5 00 100 Shares C. C. Mining Co A. IV joo.oo 50 Shares N. & J. Mining Co 0. C. K Soo 00 5 Shares S. V. Mining Co. P. G. P 50 00 $4,iSi 00 CPIARGES. Adz'ertising in B $J2 30 Commissions, as per agreement 50 00 62 30 Net proceeds of sales $4,118 00 I do solemnly swear that the alxDve-described articles were sold by me for the amounts, and to the persons above named. (See "Return.") No. 610. — Affidavit of Posting Notice — Return of Sale of Real Estate. [Title of Court and Estate.] SCHEDULE "A." State of Calif orni-a, City and Count}' of San Francisco, — ss. A. B. C, of said city and county, being duly sworn, says : That he is over the age of eighteen years, not interested in or a party to the estate of T. /., deceased. 422 New Book oi^ Forms. That on the eighth day of December, ipo6, he posted true, full, and correct copies of the annexed notice of the time and place of holding the sale of real estate ordered by this court, in the matter of said estate, on the seventh day of December, ipo6, in three of the most public places in the said county, to wit, one copy of said notice at tJie auction salesrooms of A. B. C, one at the United States PostofUce, and one at the sheriff's office. City Hall, in said city and county ; and that said notices remained posted for three weeks successively next before the day of sale mentioned in said notice. NOTE. — As to "oaths," "affidavits," "sworn," "verified," "un- der oath," see under heads of "Verification"; "Return." No. 6ii. — Affidavit of Service by Mail. [Title of Court and Cause.] State of Calif omia. City arid County of San Francisco, — ss. /. M., being duly sworn, deposes and says : That he is an attor- ney at law, and is the attorney of record for the above-named plaintiff in the above-entitled cause, and that he resides at the city and county of San Francisco, in the state of California; that E. F. W., is the attorney of record for the above-named defendant in said cause, and that he, said B. F. W., resides at Redwood City, county of San Mateo, in said state [or that his oilice is at No. 5^4 Montgomery street, Redzvood City] ; that in each of said two places there is a United States postoffice and between said two places there is a regular daily communication by mail ; that on the nineteenth day of August, 1905, deponent served a true copy of the amended complaint herein on said B. F. W., the said attorney of said defendant, by depositing such copy of complaint, on said date, in the postoffice at said city and county of San Fran- cisco aforesaid, properly inclosed in an envelope, addressed to said B. F. W., attorney at law, at Redzvood City, San Mateo county, said place of residence, and prepaying the postage thereon. (All courts.) NOTE.— California, C. C. P., sec. 1013. In case of service by mail, the notice or other paper must be deposited in the postoffice, addressed to the person on whom it is to be served, at his office or place of resi- dence, and the postage paid. The service is complete at the time of the deposit, but if within a given number of days after such service a right may be exercised, or an act is to be done by the adverse party, the time within which such right may be exercised or act be done ia extended one day for every twenty-five miles distance between the place of deposit and the place of address; sueh extension, however, not Affidavit, 423 to exceed ninety days in all: Alaska, Codes, pt. 4, e. 50, sees. 495 .')03, 638; Arizona, C. C, pare. 1339, 1370, 1372, 1568, 1596; Idaho. C. C. P., Bee. 3711; Montana, C. C. P., sees. 1832, 1833; Nevada, Comp. Laws, sees. 3591-3593; North Dakota, C. C. P., sees. 56G9, 5726; Oregon, Codes and Statutes, sees. 539-541, 543, 820-823; South Dakota, C. C. P., sf-cs. 507, 554, 556; Utah, Rev. Stats.^ sees. 3332, 3333; Washington, Bal- linger's Codes, sees. 4890, 4891. No. 612. — Affidavit of Service of Notice. [Tide of Court and Cause.] State of California, County of Butte, — ss. A. B., being duly swom, says : That he is the attorney of record for the defendant herein; that at twelve o'clock M., on the third day of August, igo6, he served the plaintiff herein with defend- ant's notice of motion to take the deposition of A. C. in this ac- tion, by leaving a copy of said notice at the residence of said plain- tiff. No. 327 Polk street, in the city and county of San Francisco. At that time the said plaintiff was absent from his said residence, and the said notice was handed to S. P. C, the wife of said plain- tiff, his wife being a discreet person over twenty-one years of age [or any other person of suitable age (legal age) and discretion], (All courts.) No. 613. — Affidavit of Service of Notice — Clerk, etc [Title of Court and Cause.] State of California, County of Butte, — ss. [The same as in the preceding down to the words "a copy of said notice," then say:] with A. G. T., the clerk of A. W. A. the attorney of plaintiff, [or say: with L. B., who had at that time charge of said office; and then add:] the said A. W. A. beino- at that time absent from said ofhce. (All courts.) No. 614- — Affidavit of Service — Office Table. [Title of Court and Cause.] State of California, County of Butte, — ss. A. B., being duly swom, says : That he is the attorney of rec- ord for the defendant herein; that at tivelve o'clock M., on the third day of August, IQ05, he served on the plaintiff" herein de- 424 New Book of Forms. fendant's notice of motion to take the deposition of A. C. in this action, by leaving a copy of said notice on the only table in the law office of A. W-, the said plaintiff's attorney herein, at No. i*7J Sansome street, in the city and county of San Francisco, said table being in a conspicuous place in said office, to wit, the table used by the said A. W. when engaged in attending to his busi- ness as attorney at law. When said notice was so left on said table said office was open, but no person was in it and a notice was on the office door gizing noti-ce that said attorney had gone to lunch, and would return in three hours. All courts. No. 615. — Affidavit — Sole Trader. [Title of Court and Cause,] State of California, City and County of San Francisco, — ss. I, A. J., do, in the presence of Almighty God, solemnly swear, that this application was made in good faith, for the purpose of enabling me to support myself and my Uve cftiidren, viz., A. J., W. J., F. J., A. J., and B. J., and not with any view to defraud, delay, or hinder any creditor or creditors of my husband, and that of the moneys so to be used by me in business not more than five hun- dred dollars has come, either directly or indirectly, from my hus- band. So help me God. NOTE.— California, C. C. P., see. 1818; Idaho, C. C, see. 3883; Mon- tana, C. C. P., see. 2295; Nevada, Comp. Laws, sec. 546. No. 616. — Affidavit — Substitution of Party. [Title of Court and Cause.] State of California, County of Butte, — ss. /. M., being duly sworn, says : That he is defendant in the above-entitled action [and lias been served with sninmons therein, but has not answered] ; that said action is prosecuted agamst de- fendant to recover from him a gray stallion known as "H. L." ; that one H. N., not a party to said action, claims to cnim said stallion and to be entitled to his possession, and he makes said claim without any collusion, but in good faith ; and he has, since said action was commenced, demanded said stallion of defendant; that affiant has no interest in said stallion or in the result of said action. Wherefore, affiant prays for an order substituting said H. N. as defendant herein in place of affiant, and to discharge affiant from liability to either party in the action. (All courts.) ArrTDAvrf. 425 NOTE.— California, C. C. P., sees. 385, 386; Alaska, Codofl, pt. 4, <:. 3, sees. 38-41; Arizona, C. C. par. 1308; Idaho, C. C. P., sec. 317.=-j; Montana, C. C. P., sees. 587, 588; Nevada, Comp. Laws, sec. 3693; North Dakota, C. C. P., sees. 5238-5240; Oregon, Codes and Statutes, sees. 40, 327; South Dakota, C. C. P., fioes. 91. 04, 97; T'tah, Bev. Stats., sees. 2921-2925; "Washington, Ballinger's Codes, sec. 4842. No. 617. — Affidavit (Justification) of Sureties. State of California, City and County of San Francisco, — ss. /. B. and S. J., the sureties named in the above bond, being duly sworn, each for himself, says: That he is a Jwuseholder and resident within said state, and is worth the said sum of one thou- sand dollars over and above all his debts and liabilities, exclusive of property exempt from execution, (All courts.) NOTE. — CaKfomia, C. C. P., sec. 1037; Alaska, Codes, pt. 4, c. 12, Bees. 109, 110; Arizona, C. C, pars. 426-431, 820, 918; Idaho, C. C. P., sees. 3740 (civil actions), 3278 (replevin); Montana, C. C. P., sees. 1899, 1901; Nevada, Comp. Laws, sees. 1902, 3688, 3699, 4471, 4472, 4477; Oregon, Codes and Statutes, sees. 269, 271, 288, 346, 549, 2210; South Dakota, C. C. P., sees. 160, 170, 173, 174, 188, 191, 222, 458; Utahj Kev. Stats., sec. 3493, generally; in special proceedings, sees. 3024, 3026, 3049, 3051, 3060, 3068, 3085, 3312, 3493, 3748, 3831, 4997, 5169; Washington, Ballinger's Codes, sees. 5355, 5480, 5481; Wyoming, Kev. Stats., sees. 3424, 3973, 4154, 4529. No. 618. — Affidavit of Sureties Annexed to Officer's Official Bond- State of California, City and County of San Francisco, — ss. S. N. P., J. M. W. and /. C. B., sureties in the foree^oing bond, being separately and duly sworn, each says for himself, that he is a resident and freeholder [or householder] within the state of California, and county aforesaid, and that he is worth the amount for which he becomes liable as surety specified in the foregoing bond, over and above all his debts and liabilities, in unencum- bered property situated within this state, exclusive of property exempt from execution. (All courts.) NOTE.— California, C. C. P., sec. 1057; Arizona, C. C, pars. 235, 236; Idaho, P. C, sec. 291; Montana, Pol. C, sec. 1858; Nevada, Comp. Laws, sees. 2S42, 2813; Oregon. Codes and Statutes, sees. 2531. 2555, 2666; South Dakota, Pol. C, sees. 1792-1801; Utah. Rev. Stats., see. 3493; Washington, Ballinger's Codes, sees. 1527, 1528; Wyoming, Eev. Stats., sec. 2617. 426 Ne;w Book of Forms. No. 619. — Affidavit of Service of Summons by Mail. [Title of Court and Cause.] State of California, City and County oi San Francisco, — ss. W. R., of said city and county, being duly sworn, says: That he is a male citizen of the United States, over eighteen (18) years of age and not a party to the above-entitled action. That on the -fifteenth day of August, 1906, the complaint in said action was filed, and afterward, to wit, on the sixteenth day of August, IQ06, an order was made by the court for the publica- tion of the summons in said action, and also a further order that a copy of said complaint and a copy of said summons should be forthwith deposited in the United States postoffice, at the city and county of San Francisco, directed to the defendant, R. R., in said action at his place of residence, to wit, at the city and county of New York, state of New York; that forthwith, to wit, on the fifteenth day of August, ipo6, and in pursuance of the said order of the court, he deposited in the United States postoffice, at the city of San Francisco, a copy of said summons, attached to a copy of the said complaint, directed to R. R., the said defend- ant, at the city and county of New York, state of New York, the place of his residence, as aforesaid, and paid the postage thereon in advance, and that there is a regular communication by the United States mails from said postoffice of deposit thereof, as aforesaid, to said defendant's said place of residence. All courts. NOTE. — In California, section 413 of the code requires the judge to order a copy of the summons and complaint deposited in the postoffice. Section 415 only requires affidavit of the deposit of a copy of the sum- mons, but the affidavit should always be as in the form: Alaska, Codes, pt. 4, c. 4, sees. 52, 638; Arizona, C. C, pars. 1329, 1334; Idaho, C. C. P., sees. 3195, 3196; Montana, C. C. P., sees. 637-640; Nevada, Comp. Laws, sees. 3128, 3129; North Dakota, C. C. P., sec. 5254; Oregon, Codes and Statutes, sees. 57, 62, 539-541, 543; South Dakota, C. C. P., sees. 507, 554, 556; Utah, Eev. Stats., sec. 2952; Washington, Ballinger's Codes, sec. 4882; Wyoming, Eev. Stats., see. 3705. No. 620. — Affidavit of Publication of Notice to Creditors. [Title of Court and Estate,] State of California, City and County of San Francisco, — ss. IV. F., of the said city and county, being duly sworn, deposes and says : That he is over eighteen years of age ; that he has no Affidavit. 427 interest whatsoever in the estate mentioned therein and is not a party thereto; and that he is the principal clerk of the printers and publishers of The Shout cr, a newspaper published daily in said city and county, and has charge of all the advertisements in said newspaper, and that the notice to creditors in the case of the estate of T. J., deceased, of which notice the following is a printed copy: [Here insert printed copy] has been published once a zveek for four successive weeks in the above-named newspaper, com- mencing on the first day of July, IQ06, and ending on the thirty- first day of July, ipo6 (both days inclusive), and further he say- eth not. (All courts.) NOTE. — In California evidence of the publication of a document or notice required by law, or by an order of a court or judge, to be pub- lished in a newspaper, may be given by the affidavit of the printer of the newspaper, or his foreman or principal clerk, annexed to a copy of the document or notice, specifying the times when and the paper in which the publication was made: C. C. P., sec. 2010. The publication must be made daily, or otherwise as often during the prescribed period as the paper is regularly issued, unless otherwise pro- vided in Code of Civil Procedure. The court or judge may order a less number of publications during the period: Id., sec. 315. Alaska Codes, pt. 4, c. 60^ sec. 638; Idaho, C. C. P., sees. 4447-44.53; Montana', C. C. P., sees. 641, 642; Nevada, Comp. Laws, sees. 3128, 3129; North Dakota, C. C. P., sec. 5262; Oregon, Codes and Statutes, sees. 820 822- South Dakota, C. C. P., sec. 507; Utah, Rev. Stats., sec. 4035; Washin' of said property to the said plaintiff, do hereby undertake and ac- knowledge to the effect that we are jointly and severally bound in the sum of nine hwidred and sixty dollars (being double the value of said property as stated in the affidavit) , for the prosecu- tion of the said action for the return of the said property to said defendant, if return thereof be adjudged, and for the payment to the said defendant of such sum as may, from any cause, be recovered against the said plaintiff. (All courts.) NOTE.— In California, upon receipt of the affidavit and notice, with •indertakinfT, by two or more sureties, approved by the sheriff, that they are bound to the defendant in double the value of the property, as stated in tiie affidavit for the prosecution of the action, for tho return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may, from anv cause*' be recovered against the plaintiff, the sheriff mus't forthwitli take ' the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custodv: C. C. P., sec. 512; Alaska, Codes, pt. 4, c. 13, sec. 126; Arizona, c' C., par. 3814-3816- Idaho, C. C. P., sees. 3S74. 3875; Montana, C. C. P., sec. 843; Nevada', Comp. Laws, sees. 3196, 3197; New Mexico, Comp. Laws, sees. 2743* 2755; North Dakota, C. C. sec. 5334; Oregon, Codes and Stats., sec. 287; South Dakota, C. C, sec. 187; Utah. Rev. Stats., sec. 3048; Washington', Ballinger's Codes, sec. 5426; Wyoming Kev. Stats., sec. 4150. New Forms — 32 49S New Book of Forms. No. 837. — Bond (Undertaking) — Claim and Delivery, Return to Defendant on. [Title of Court and Cause.] Whereas, D. M. L,., sheriff of the county of Siskiyou, state of California, under and by virtue of an order and requirement duly made and issued in the above-entitled action, and to him directed, did on the third day of June, igo6, take from the possession of the defendant in the said action, the following described personal property, to wit, Hve gold watches, Hve silver watches, seven dia- mond rings; And whereas, the said defendant is desirous that the said prop- erty be redcHvered to him by the said sheriff. Now, therefore, we, the undersigned, G. P., and W. G., in con- sideration of the premises, and of the said redelivery of the said property from the said sheriff to the said defendant, do under- take, promise, and acknowledge to the effect that we are jointly and severally bound unto the said sheriff in the sum of nine hundred and sixty (gdo) dollars (being double the value of the said property, as stated in the affidavit of the plaintiff), for the delivery thereof to the said plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may, for ^.ny cause, be recovered against the said defendant. (All courts.) NOTE. — In California at any time before the delivery of the prop- erty to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff an undertaking, by two or more sureties, to the effect that they are bound in douVjle the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if Buch delivery be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the defendant: C. C. P., sec. 514; Alaska, Codes, pt. 4, c. 13, sec. 128; Arizona, C. C, par. 3S18, 3819; Idaho, C. C. P., sees. 3276, 3277; Montana, C. C. P., sec. 844; Ne- vada, Comp. Laws, sec. 3199; New Mexico, Comp. Laws, sees. 2751-27.'58; North Dakota, C. C, sec, 5336; Oregon, Codes and Stats., sec. 289; South Dakota, C. C, sec. 189; Utah, Eev. Stats., sec. 3050; Washing- ton, BaUinger's Codes, sec. 5422; Wyoming, Eev. Stats., sec. 4151. No. 838. — Bond (Undertaking) — Costs on Appeal. [Title of Court and Cause.] Whereas, the plaintiff in the above-entitled action is about to appeal to the supreme court of the state of California from a judgiTient rendered against him in said action, in the said su- ])erior court, and in favor of the defendant, for four hundred dollars costs, and entered on the twentieth day of December, igo6. Bond — Undek-taking — Bail. 499 Now, therefore, in consideration of the premises, and of such appeal, we, the undersigned, residents of the county of Alameda, and state of California, do hereby jointly and severally undertake and promise, on the part of the appellant, that the said appellant will pay all damages and costs wliich may be awarded against him on the appeal, or on a dismissal thereof, not exceeding three hundred dollars, to which amount we acknowledge ourselves jointly and severally bound. NOTE.— California, C. C. P., scr. 941; Alaska. Codes, pt. 4, c. 51, sec. 508; Ari7X)na, C. C, par. 1506-1508; Idaho, C. C. P., sees. 3575, 3576; Montana, C. C. P., sees. 1724-1728; Nevada, Comp. Laws, sec. 3436; New Mexieo, Comp. Laws, sec. 3136; Oregon, Codes and Stats., sees. 549, 550; South Dakota, C. C, sees. 445, 446, 453, 456; Utah, Eev. Stats., sec. 3306; Washington, Ballinger's Codes, sees. 6505, 6506, 6509; Wy- oming, Rev. Stats., sees. 4256, 4258. No. 839. — Bond (Undertaking) — Executor — More than Two Sureties. [Title of Court and Cause.] Know all Men by these Presents: That I, T. M., as prin- cipal, am held and firmly bound unto the state of California in the sum of eighty-four thousand dollars, lawful money of the United States of America, to be paid to the said state of Cali- fornia, for which payment, well and truly to be made, I bind myself, my and each of my heirs, executors, and administrators, finnly by these presents. And we, /. S., R. A. S., and T. D., as sureties, are severally held and firmly bound, and jointly with said T. M., are held and firmly bound unto the said state of California in the following sums, respectively, to wit ; I, the said /. S., in the sum of twenty thousand dollars ; I, the said R. A. S., in the sum of fifty thou- sand dollars, and I. the said T. D., in the sum of fourteen thou- sand dollars, lawful money of the United States of America, to be paid to the said state of California, for the payment of which sums, .veil and truly to be made, we, and each of us, respectively, bind ourselves, our and each of our heirs, executors, and ad- ministrators, jointly and severally as aforesaid firmly by these presents. Sealed with our seals, and dated this third day of May, igo6. The condition of the above obligation is such, that whereas, hy an order of the superior court of the county of Sacramento, state aforesaid, duly made and entered on the second day of Ma\, igo6, the ahove-hounden T. M. and one G. B. were appointed ex- ecutors of the last will and testament of P. C, deceased, and let- ters testamentary xvere directed to he issued to them upon exe- cuting a bond, according to law, in said sum of eighty-four th&u- 500 New Book of Forms. sand dollars, being security as zvell for the personal property of the estate of said deceased as for the annual rents, issues and profits of the real estate of said deceased in Jiis charge as execu- tor. Now, therefore, if the said T. M., as such executor, shall faith- fully execute the duties of the trust, according to law, then this obligation to be void, otherwise to remain in full force and effect. NOTE. — In California every person to whom letters testamentary or of administration are directed to issue must, before receiving them, execute a bond to the state of California, with two or more sufficient sureties, to be approved by the superior court, or a judge thereof. In form the bond m.ast be joint and several, and the penalty must not be less than twice the value of the personal property, and twice the probable value of the annual rents, profits, and issues of real prop- erty belonging to the estate, which values must be ascertained by the superior court, or a judge thereof, by examining, on oath, the party appljnng, and any other persons [that is to say, if there is doubt as to the qualification of the surety, evidence may be taken to ascertain the facts]: C. C. P., see. 1388; Alaska, Codes, pt. 4, c. 81, sec. 777; Arizona, C. C, par. 1667; Idaho, C. C. P.. sec. 4062; Montana, C. C. P.. sec. 2471; Nevada, Laws, Stats. 1903, p. 209; New Mexico, Comp. Laws, sec. 1944; North Dakota, Probate Code, sees. 6347-6352; Oregon, Stats. 1903, p. 216; South Dakota, Probate Code, sees. 101-107; Utah, Eev. Stats., sec. 3827; Washington, Ballinger's Codes, sec. 6147; Wyoming, Eev. Stats., sec. 4661. No. 840. — Bond (Undertaking) — Guardian — Qualifying. [Title of Court and Estate.] Know all Men' by these Presents : That we, M. /., as prin- cipal, and /. D. and R. R. as sureties, are held and firmly bound unto W. J., a minor, in the sum of one thousand dollars, lawful money of the United States of America, to be paid to the said JV. J., minor, for which payment well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this tzvelfth day of December, ipo6. The condition of the above oblig'ation is such, that whereas an order was m.ade by the superior court of the city and county of San Francisco, state of California, on the tenth day of December, ipo6, appointing the above-bounden M. J. the guardian of the person and estate of said minor, and directing that letters of guardianship be issued to her upon her giving a bond to said minor, with sufficient sureties, to be approved by the judge of said superior court, in the penal sum of one thousand dollars, conditioned that said guardian shall faithfully execute the duties of her trust, according to law. Now, therefore, if the said M. J. shall faithfully execute the duties of her trust, according to law, then this obligation shall be void and of no effect, else to remain in full force and virtue. Bond — Undertaking — Bail. 501 NOTE. — Tn California the statute provides that the conrt must re- quire of the guardian a bond eonditionod that he will faithfully exe- cute the duties of his trust according to law; and the following con- ditions shall form a part of said bond without being expressed therein: 1. To make an inventory of all the estate, real and personal, of his ward that comes to his possession or knowlidge, and to return thf s;ime within such time as the court may order. 2. To dispose of and manage the (State according to law, and for the best interest of the ward, and faithfully to discharge his trust in relation thereto, and also in relation to the care, custody, and education of the ward. 3. To render an account on oath of the i)roperty, estate, and moneys of the ward in his hands, and all proceeds or interests derived therefrom, and of the niMiiMgcment and disposition of the same, within three months after hig appointment, and at such other times as the court directs, and at the expiration of his trust to settle his accounts witli the court, or with the ward, if he be of full age, or his legal representatives, and to pay over and deliver all the estate, moneys, and effects remaining in his hands, or due from him on such settlement, to the person who is law- fully entitled thereto: C. C. P., sec. 1754; Alaska, Codes, pt. 4, c. 8S, sees. 891, 908, 913; Arizona, C. C. par. 1961; Idaho, C. C. P., sec. 4348; Montana, C. C. P., sec. 2957; Nevada, Comp. Laws, sec. 565; New Mexico, Comp. Laws, sees. 1442, 1446; North Dakota, Probate Code, sees. 6347- 6352; Oregon, Codes and Stats., sec. 5263; South Dakota. Probate Code, sec. 373; Washington, Ballinger's Codes, sec. 6403; Wyoming, Rev. Stats., sec. 4873. No. 841. — Bond (Undertaking) — Guardian — Sale of Real Es- tate. [Title of Conrt and Estate.] Know all Men by these Presents: That we. M. J., as prin- cipal, and /. D. and R. R. as sureties, are held and firmly bound to W. J., C. J. and E. J., wards of the above-bounden M. J., in the sum of fifteen hundred dollars, lawful money of the United States of America, to be paid to the said wards, for which pay- ment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators jointly and sev- erally, firmly by these presents. Sealed with our seals and dated this fifteenth day of Febrnary, jpo6. The condition of the above obligation is such, that whereas an order was made on the fourteenth day of Febrtiary, JQ06, by the superior court of the said eify and county of San Francisco, au- thorizing the above-named principal, as guardian of the persons and estates of JV. J., C. J., and E. J., minors, to sell certain real estate, the property of said minors, and bond in the sum above named was ordered to be given before the sale. Now, therefore, if the said M. /., as such guardian, faithfullv execute the duties of her trust according to law, and shall sell the said real estate in the manner prescribed by law for sales of real estate by executors and administrators, and shall account for and dispose of the proceeds of the sale in the manner provided by law, then this obligation to be void, otherwise to remain in full force and effect. 502 New Book of Forms. NOTE. — In California, before a sale of a ward's real estate, a guardian must give a bond to the ward with condition to sell the land in the manner, and to account for the proceeds of the sale, as provided for by law: C. C. P., see. 1788. AH the provisions of law respecting sales and accounts of sales bj"" executors and administrators are applicable to sales by guardians: Id., sec. 1789; Alaska, Codes, pt. 4, c. 88, sees. 891, 908, 913; Arizona, C. C, par. 2009; Idaho, C. C. P., see. 4378; Montana, C. C. P., sec. 2012; New Mexico, Comp. Laws. sees. 1442, 1444, 1468; North Dakota, Probate Code, sees. 6347-6352; Oregon, Codes and Stats., sees. 5602, 5603; South Dakota, Probate Code, see. 403; Utah, Rev. Stats., sec. 4015; Washington, Ballinger's Codes, sees. 6414, 6416; Wyo- ming, Eev. Stats., sec. 4919. No. 842. — Bond — Inheritance Tax — Beneficiary to State. [Title of Court and Cause.] Know all Men by these Presents: That we, A. B. and C. D., both residents of the city and county of San Francisco, state of California, are bound unto the people of the state of California in the sum of $20,000, gold coin of the United States, for which payment we jointly and severally bind ourselves by these presents. Dated this day of , A. D. igo6. The condition of the obligation is such : That whereas an in- heritance tax of $10,000 has been assessed against E. F. on ac- count of 1 legacy to him under the last tvill of S. D., deceased, etc., and whereas said B. F., has elected not to pay said tax until he shall come into the actual possession or enjoyment of said property. Now, if the said B. F. will pay said tax and interest thereon at such time or period as he or his representatives may come into the actual possession or enjoyment of such property, then this obligation to be void, otherwise to remain in force. NOTK— California, Act of March 20, 1905, Stats., p. 341, sec. 5, No. 843. — Bond — Inheritance Tax — Executor. [The same as in No. 842 to and including the words "bind our- selves by these presents"; then continue:] The condition of this obligation is such : That whereas A. B. is the executor of the will of C. D., deceased, and whereas, it is claimed that there is due the state of California $5,000 from B. F., a legatee under said zvill on account of said $5,000 having been as- sessed and leased as a tax upon said legacy; and ivhereas and by reason of unavoidable delay ceased by litigation, said tax has not been paid within eighteen months from the death of said C. D., and whereas, the said estate is not ready for settlement, nor has said executor sufificient money in his possession belonging to said estate with which to pay said tax ; now, if said executor, as such. Bond — Undertaking — Baii* 503 will pay or cause said tax to be paid and all interest thereon as soon as the cause for delay, as hereinabove stated, in the payment of said tax, is removed, then this obligation to be void, otlier- wise to be and remain in force. NOTE.— California, Stats. 1905. p. 341, 8ec8. 5-8. No. 844. — Bond (Undertaking), Injunction, on, [Title of Court and Cause.] Whereas, the above-named plaintiff has commenced an action, and issued summons therein, in the superior court of the county of Lassen, state of California, against the above-named defendant, and is about to apply for an injunction, in said action, against the said defendant, enjoining and restraining him from the com- •nission of certain acts, as in the complaint filed in the said action is more particularly set forth and described. Now, therefore, we, the undersigned, residents of the county of Lassen, state of California, in consideration of the premises, and of the issuing of said injunction, do jointly and severally under- take in the sum of three thousand (3,000) dollars, and promise to the effect, that in case said injunction shall issue, the said plain- tiff will pay to the said party enjoined, such damages, not ex- ceeding the sum of three thousand (3000) dollars, as such party may sustain by reason of the said injunction, if the said superior court finally decide that the said plaintiff was not entitled thereto. NOTE. — Tn California, on granting an injunction, except when the people of the state, a county, or municipal corporation, or a married woman in a suit against her husband, is a party plaintiflF, a written undertaking on the part of the plaintiff is required, that the plaintiff Tvill pay to the party enjoined such damages, not exceeding an amount to be specified, as such party may sustain by reason of the injunetioQ if the court finally decide that the plaintiff was not entitled thereto:' C. C. P., sec. 529; Alaska, Codes, pt. 4, c. 41, sec. 384; Arizona, C. C.', par. 2747; Idaho, C. C. P., sec. 3287; Montana, C. C. P.. see. 874; Ne%'ada, Comp. Laws, sec. 3215; North Dakota, C. C, see. 5347; Oregon, Codes and Statutes, sec. 418; South Dakota, C. C. P., sec. 200; tltah. Rev. Stats., sec. SOfiO; Wnshintrton, Ballingcr's Codes, sec. 543S; Wyomino-, Eev. Stats., sees. 4043, 4175. 504 New Book of Forms. CERTIFICATE. No. 845, — Certificate of Appointment of Road Overseer. State of California, County of San Mateo, — ss. I, H. W., county clerk of said county, and ex-officio clerk of the board of supervisors therein, do hereby certify, that at a regular meeting of said board, helJ on Monday, the sixteenth day of No- vember, IQ06, T. H. was duly appointed Road Overseer of Road District No. 3, of Township No. 2, of said county, as appears by the records of the proceedings of said board of supervisors now in my custody. No. 846. — Certificate of Appointment — Oath to. State of California, County of San Mateo, — ss. I do swear that I will support the constitution of the United States, and the constitntion of the state of California, and that I will faithfully discharge the duties of Road Overseer of Road District No. j, of Township No. 2, county of San Mateo, ac- cording to law and the best of my ability. ^fo. 847. — Certificate that Notary Public has Taken His 0£&- cial Oath, etc. Office of the County Clerk, County of Amador. I, L. J. F., county clerk of the county of Amador, state of Cali- fornia, do hereby certify that on the tenth day of July, A. D. ipo6, E. W. B., duly qualified as notary public in and for said county, taking his official oath and filing his olhcial bond as by law re- quired, and which bond was duly approved, as by law required. Certificate. 505 No. 848.— Certificate — Attachment Writ — That Person Issu- ing is a Justice of the Peace — By County Clerk. [Title of Court and Cause.] State of California, County of Butte, — ss. I hereby certify than on the ^d day of June, A.D. ipo6, A. B. C, whose name is signed to the writ of attachment to which this in- strument is attached, was an acting justice of the peace of the county of Butte, state of California. NOTE.— California, C. C P., sec. 868 j Stats. 190.5, 208. No. 849. — Certificate of Election, UNITED STATES OF AMERICA. State of California, County of Butte, — ss. I, W. A. S., county clerk, in and for the city and county of San Francisco, in the state of California, do hereby certify that a gen- eral election, held in and for said city and county of San Fran- cisco, on the seventh day of September, one thousand eight hun- dred and ninety-four, P. J. W. was duly elected to the office of sheriff in and for said county, as appears by the official returns of said election, and the statement of votes cast, now on file in my ofiice. No. 850.— Oath of Office. State of California, City and County of San Francisco. I do solemnly swear that I will support the constitution of the United States, and the constitution of the State of California, and that I will faithfully discharge the duties of sheriff in and for the city and county of San Francisco, according to the best of my ability. So help me God. No. 851. — Certificate to Signature. State of California, County of San Mateo, — ss. I, H. IV., county clerk of the county of San Mateo, state of California, hereby certify that (7. U\ P., before whom the an- nexed instrument was made, acknowledged, and executed, and 5o6 New Book of Forms. who has hereunto subscribed his name, was at the time of so do- ing a notary public in and for the said San Mateo county, duly commissioned and sworn, and that his signature thereto is gen- uine. I further certify that the said instrument, a deed, is made, acknowledged, and executed in accordance with the laws of the state of California. No. 852. — Certificate of Marriage, This certifies that the writ of holy matrimory was celebrated between /. W. Y., of Sacramento, state of California, and M. M. S., of Redwood City, county of San Mateo, on the twenty-fifth day of December, one thousand nine hundred and four, at the city and county of San Francisco, by me, /. C. P., justice of the peace of said city and county. No. 853. — Certificate of Marriage. This certifies that on the twenty-fifth day of January, in the year of our Lord, Jpoj, J. Y. and L. A. were by me united in marriage, at Unitarian Church, San Francisco, according to the laws of the state of California. No. 854. — Certificate — Citizenship of Minor. [Title of Court and Cause.] It appearing to the satisfaction of this court, by the oaths of E. B. and H. S., citizens of the United States of America, wit- nesses for that purpose, first duly sworn and examined, that M. M. L. is a native of Russia, has resided in the United States of America three years next preceding his arriving at the age of twenty-one years, and that he has continued to reside in the United States to the present time, and has resided within the limits and under the jurisdiction of the United States five years at least last past, and within the state of California for one year at least last past; and that during all of said five years' time he has behaved as a man of good moral character, attached to the principles of the constitution of the United States, and well dis- posed to the good order and happiness of the same ; and the said applicant has declared his intention to become a citizen of the United States ; and having now here, before this court, taken an oath that he will support the constitution of the United States of America, and that he doth absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty whatever, and particularly to that of the Empire of Russia: It is therefore ordered, adjudged, and decreed, that the said M. M. L. be, and he is hereby admitted and declared to be, a Citi- zen OF THE United States oe America. Certificate. 507 No. 855. — Certificate — Tax Sale of Real Estate to an Indi- vidual. SOLD FOR THE NONPAYMENT OF STATE AND COUNTY TAXES FOR THE FISCAL YEAR 1 893-94. State of California, County of Sacramento, — ss. I, A. H., tax collector of the county of Sacramento, do hereby certify that, by virtue of Chapter VII, Title IX of Part III, of the "Political Code of the State of California," I, A. H., the tax collector of the county aforesaid, heretofore and at the time here- inafter mentioned, did on the third Monday in January, i8p4, de- liver to the auditor of said county a complete "Delinquent List" of all persons and property then owing taxes in said county to the state of California, and to the county of Sacramento, together with the costs and charges due thereon, which said delinquent list did include the property first hereinafter described in this certificate. That the said property was assessed for the fiscal year ending June 30, i8p4, for state and county taxes, at $1,000, to J. W.; that the property assessed situated, lying, and being within the county of Sacramento, and described thus: [Description.] Was on the tzvcnticth day of March, i8p4, in accordance with law, offered for sale to pay said taxes, at public auction in front of the county courthouse, in said county; that at said auction /. /. was the bidder who was willing to take the least quantity or smallest portion of the interest in said land, and pay the taxes, costs, and charges due thereon, which taxes, costs, and charges, including ^fiy (50) cents for this certificate, amount to thirty-one dollars; that the said least quantity or smallest portion of the interest in said land lying and being within the county of Sacramento, as is hereinafter described, to wit: [Description.] Was by me, A. H., tax collector as aforesaid, struck ofif to the said /. /. , w ho paid the full amount of said taxes, costs, and charges, and therefore be- came the purchaser of the last above-described piece or parcel of land so sold as aforesaid for said taxes, and I do further certify that the said real estate was sold subject to redemption, pursuant to the statute in such cases made and provided, and that unless redeemed within twelve months from the date of this purchase, said purchaser will be entitled to a deed at the expiration of tzvelve months from date of the sale. NOTE. — No lonjor in use in California. No person is permitted to bid against the state. 5o8 New Book of Forms. No. 856. — Certificate — Tax Sale of Real Estate to State. sold for the nonpayment of state and county taxes for thb fiscal year 1 894-95. State of California, County of Sacramento, — ss, I, A. H., tax collector of the county of Sacramento, do hereby certify that by virtue of Chapter VII, Title IX, Part III, of the '"Political Code of the state of California," I, A. H., the tax col- lector of the county aforesaid, heretofore and at the time herein- after mentioned, did on the jd Monday in January, i8g>4, deliver to the auditor of said county a complete "Delinquent List" of all persons and property then owing taxes in the said county to the state of California and to the county of Sacramento, together with the costs and charges due thereon ; which said delinquent list did include the property first hereinafter described in this certificate. That the said property was assessed for the fiscal year ending June 7,0, i8q4, for state and county taxes, at one thousand dollars, to /. B. That the property assessed situated, lying, and being within the county of Sacramento, and described thus: [Description.] Was on the twentieth day of March, 18^4, in accordance with law, offered for sale to pay said taxes, at public auction, in front of the county courthouse, in said county, to the said best bidder, who was willing to take the least quantity or smallest portion of the interest in said land, and pay the taxes, costs, and charges due thereon, which taxes, costs, and charges amounted to thirty- one dollars. That on said day there was no purchaser in good faith for the same, or any part thereof. That thereafter, to wit, on the twentieth day of April, i8q4, to which day I had postponed the sale, I again oflfered, in accordance with law, the said property for sale to pay said taxes, at public auction, in front of the county court- house, in the said county; and there being no purchaser in good faith for the same or any part of it, I did then and there strike off to the people of the state of California, as purchasers, the whole of said property for the amount of said taxes, costs, and charges, to wit, the sum of thirty-one dollars, whereby the people of the state of California became the purchasers of the last above described piece or parcel of land so sold as aforesaid for said taxes ; and I do further certify that the said real estate was sold subject to redemption, pursuant to the statute in such cases made and pro- vided, and that unless redeemed within tzvelve months from the date of this purchase, said purchasers will be entitled to a deed at the expiration of tv/elve months from the date of the sale. NOTE. — No long-cT used in '''alifornia. AW real ostrito is sold to the state by an entry in the records. No certificate is issued. Certificate. 509 No. 857. — Certificate — Duplicate. INDORSEMENT. For value received, I hereby transfer, assign, convey, and set over unto G. B., heirs and assigns, all my right, title, and interest in and to the within certificate of sale (and the duplicate thereof) of real estate sold for the nonpayment of the state and county taxes, for the fiscal year iSp4-(^^, in the county of Sacramento, and numbered tzventy-three. To have and to hold the same unto the said G. B., heirs and assigns forever, with full power and authority to demand and re- ceive in his own name, or otherwise, a deed therefor, or otherwise use or dispose of at pleasure. No. 858. — Certificate — Execution — Sale of Real Estate. [Title of Court and Cause.] I, T. D., sheriflF of the city and county of San Francisco, do hereby certify, that by virtue of an execution in the above cause, attested the tenth day of August, ipo6, by which I was com- manded to make the amount of two thousand five hundred and sixty-four dollars and forty-eight cents, in United States gold coin, to satisfy the judgment in this action, with interest thereon and costs, out of the personal property of the above defendants; and if suflRcient personal property could not be found, then out of the real property belonging to the said defendants, on the tenth day of May, IQ06, or at any time thereafter, as by the said writ, reference being thereunto had, more fully appears : I have levied on and this day sold, at public auction, according to the statute in such cases made and provided, to W. J. H., who was the high- est bidder, for the sum of ttvo thousand iive hundred and forty- one (2341) dollars, which was the whole price paid by him for the same, the real estate described as follows, to wit: [Descrip- tion.] That the price of each distinct lot and parcel was as fol- lows: All the above-described property, in one parcel, for the said sum of tzvo thousand live hundred and forty-one dollars, gold coin of the United States. And that the said real estate is subject to redemption in six months, pursuant to the statute in such cases made and provided. NOTE. — California, C. C. P., sec. 700; Alaska, Codes, pt. 4, c. 31, sees. 310-332; Arizona, C. C, par. 2575; Idaho, C. C. P., sec. 3552; Montana, C. C. P., sees. 1231-1233; Nevada, Comp. Laws, sees. 3324, 3326, 3329- 3340; North Dakota, C. C. P.. sec. 5538; South Dakota, C. C. P., sec. 37:^; Utah, R-ev. Stats., see. 3258; Wa.'^hinfrton, Ballinger's Codes, sec. 5269-5296; Wyoming, Rev. Stats., sees. 3893-3900. 5IO New Book of Forms. No. 859. — Certificate — Foreclosure, Sale on. [Title of Court and Cause.] I, P. J. W., sheriff of the city and county of San Francisco, in the state of California, do hereby certify, that under and by virtue of an order of sale, issued out of the superior court of the city and county of San Francisco, in said state of California, in the action of R. F. R., plaintiff, against J. M., defendant, rendered on the sixth day of November, 1906, and entered on said sixth day of November, igo6, duly attested the seventh day of November, igo6, and to me, as such sheriff, duly directed and delivered, whereby I was commanded to sell the property hereinafter described, ac- cording- to law, and to apply the proceeds of such sale toward the satisfaction of the judgment in said action, amounting to the sum of tive thousand dollars, gold coin of the United States, with inter- est and costs of suit, I duly levied on, and on the first day of De- cember, ipo6, at 12 o'clock, noon, in front of the City Hall, in the city and county of San Francisco, I duly sold at public auction, ac- cording to law, and after due and legal notice, to said plaintiff, R. F. R., who made the highest and best bid therefor, at such sale, for the sum of five thousand tzvo hundred and sixty-two dollars, in gold coin of the United States, which was the whole sum paid by him for the real estate in said order of sale, described as follows, to wit: [Description.] And I do hereby further certify that the said property was, by direction of the said /. M., sold in one par- cel, and that the sum of five thousand tzvo hundred and sixty (3260) dollars, in United States gold coin, was the highest bid made, and the whole price paid therefor, and that the same is subject to redemption in six months, pursuant to the statute in such cases made and provided. NOTE. — Substitute "commissioner" for "sheriff" when necessary. It is a mistake to think (as some practitioners do), that a recitation of the facts concerning the commissioner's appointment, etc., gives weight to the instruments he executes. It does nothing of the kind. His au- thority depends upon the order appointing him, and that is a court record: California, C. C. P., sec. 700; Alaska, Codes, pt. 4, c. 31, sees. 265- 300; Arizona, C. C, par. 2575; Idaho, C. C. P., sec. 3552; Montana, C. G. P., sees. 1231-1233; Nevada, Comp. Laws, sees. 3324, 3326, 3329, 3340; North Dakota, C. C. P.. sec. 5538; South Dakota, C. C. P., see. 373; Utah, Eev, Stats., sec. 3258. No. 860. — Certificate — Transcript. [Title of Court and Estate.] I, W. A. S., county clerk of the city and county of San Franr CISCO, state of California, and ex-officio clerk of the superior court, in and for the said city and county, hereby certify that I have Certificate. 511 compared the foregoing' Transcript with the orig-inal papers in the above-entitled action, now on file in my office, and with all orders therein made and entered on the minutes of said court, and that the said Transcript is correct. I further certify, that a sufficient undertaking on appeal, in due form of law, was, on the tenth day of May, 1906, properly filed in said cause. NOTE,— California, C. C. P., sees. 950-953. No. 86 1. — Certificate — Judgment-rolL [Title of Court and Cause.] I, the undersigned, county clerk of the county of San Mateo, state of California, and ex-officio clerk of the superior court of said county, do hereby certify the foregoing to be a full, true, and correct copy of the judgment entered in the above-entitled action, and recorded in Judgment Book C, of said court, at page 1^4. And I further certify that the foregoing papers, hereto annexed, constitute the judgment-roll in said action. NOTE.— California, C. C. P., sec. 674. As to making of same hj clerk, see Id., sec. 670. No. 862. — Certificate — ^Jurors — Service. In the Superior Court of the County of San Luis Obispo, State of California. I hereby certify that /. H. H. was summoned and served as a grand juror of said superior court during the month of August, /pod, and that there is due him for such services for Mileage $4 00 Per diem 26 00 Total $30 00 NOTE.— California, Pol. C, sees. 4344-4346. No. 863. — Certificate, Clerk's — Papers on File. Office of the County Clerk, Of the City and County of San Francisco, — ss. I, W. A. S., county clerk of the city and county of San Fran- cisco, in the state of California, and ex-officio clerk of the superior court of the said city and county, and state aforesaid, hereby cer- tify that I have compared the foregoing copy widi the original 512 New Book of Forms. complaint in the above-entitled action, filed in my office on the twenty-fourth day of March, 1905, and that the same is a full, true, and correct copy of such original, and of the whole thereof. NOTE.— California, C. C. P., sees. 1905, 1919-1922, 1924. No. 864,— Certificate— Clerk's Minute Order. Office of the County Gerk, Of the City and County of San Francisco, — ss. I, W. A. S., county clerk of the city and county of San Fran- cisco, and ex-officio clerk of the superior court thereof, do hereby certify the foregoing to be a full, true, and correct copy of the or- der appointing J. R. administrator, with will annexed, of the estate of J. D., deceased, duly made and entered upon the minutes of the said court, and that I have compared the same with the original ; that it is a correct transcript therefrom, and of the whole thereof. NOTE. — California, C. C. P., sec. 1905. No. 865. — Certificate — Admission to Practice Law. • In the Superior Court of the County of Sierra, State of California. Be It Remembered; That S. B. D., Esquire, was, on motion first made to the court in this behalf, by P. V ., Esq., duly admitted and licensed as an attorney and counselor at law of the superior court of the county of Sierra, in the state of California, on the third day of June, 1906. In witness whereof, I, H. S., county clerk of Sierra county, and ex-officio clerk of the superior court of said county, have hereunto set may hand and affixed the seal of said court at DownieviUe this third day of June, 1906. NOTK — California, C. C. P., sec. 277. No. 866. — Certificate, Notary Public's. I, F. B. W., a notary public in and for said county, do hereby certify that the witness in the foregoing deposition, named /. A., was by me duly sworn; that said deposition was then taken at the time and place mentioned in the annexed order, to wit, at my office, in the county of Plumas, state of California, and on the Urst day of March, 1906, between the hours of 10 A. M._ and 4 P. M. of that day; that said deposition was reduced to writing by me, and, when completed, was by me carefully read to said witness, and being by him corrected, was by him subscribed in my presence. NOTE.— California, C. C. P., sec. 2032. Certificate. 513 No. 867. — Certificate, Clerk's, to Writing or Signature, State of California, County of San Mateo, — ss, I, H. W., county clerk of the county of San Mateo, state of California, and clerk of the superior court of said San Mateo county (zvJiich is a court of record), do hereby certify that G. W. F., whose name is subscribed to the annexed instrument, was, at the date of the same, and is now, a fwtary public in and for said San Mateo county, commissioned and qualified, and authorized by law to administer oaths and take acknotvledgments of instruments, and full faith and credit are due to all his official acts as such. And I do further certify that I am acquainted with his hand- writing- and the signature attached to the annexed original in- strument is, I believe, his proper signature and is genuine. NOTE. — California, C. C, sec. 1194. It is used when the instrument to which it is attached ia to be returned, or sent to a place out of the state. It is usually attached to certificates of acknowledgment — a jus- tice's or commissioner's. No. 868.— Certificate, Clerk's — General. [ State of California, City and County of San Francisco, — ss. I, W. A. S., county clerk of the city and county of San Fran- cisco, state of California, and clerk of the superior court, do hereby certify that the foregoing is a full, true, and correct copy of an anstver [or other instrument], with the indorsements thereon, re- maining on file in this office. NOTE.— California, C. C. P., sees. 1905, 1919, 1922, 1924. No. 869. — Certificate — Decree, to — Copy of. Office of the County Clerk, Of the City and County of San Franc:isco, — ss. I, W. A. S., county clerk of the city and county of San Fran- cisco, state of California, and ex-officio clerk of the superior court of said city and county, hereby certify the foregoing to be a full, true and correct copy of the original decree in the above-entitled cause, filed in my office on the thirtieth day of November, IQ06, and that the same was entered of record on the fourth day of De- cember, 1906, in Judgment Book H , page ^p/. NOTE.— California, C. C. P., sees. 1905, 1919, 1922, 1924, New Forms — 33 514 New Book of Forms. CITATION. No. 870. — Citation — Court to Administrator. [Title of Court and Cause.] More than six months having- expired since A. B. was appointed administrator of the estate of C. D., deceased, and he has failed to render an exhibit under oath as directed by law ; it is ordered that a citation issue commanding him to render such exhibit within ten days from the date of serv-ice of said citation. NOTE. — A court or judge must cause a citation to issue under such circumstances: Cal. C. C. P., sees. 1623, 1624; Arizona, C. C, pars. 185-5, 1856, 1862; Idaho. C. C. P., sees. 4243, 4244; Montana, C. C. P., sees. 2781, 2782; Nevada, Comp. Laws, sec. 2972; Oregon. Codes and Statutes, sec. 1200; Washington, Ballinger's Codes, sees. 6316, 6317; Wyoming, Eev. Stats., sees. 4713, 4714. No. 871. — Citation — Juvenile Court. [Title of Court and Cause.] The People of the State of California to A. B., Custodian of, C. D., a Minor Child of M. D.: You are hereby cited and required to appear before this court in the county of Butte, state of California, at the courtroom, on the ?(/ day of June, A. D. IQ06, at i o'clock A. M., of that day and bring said child with you, and then and there to show cause, if any you have, why said child should not be declared to be delinquent child, according to the petition on file herein. And for failure to attend and bring said child with you, you A^ill be deemed guilty of a contempt of court. No. 872. — Citation to Show Cause. /Title of Court and Estate.] The people of the State of California to F. W, and H. W., Greet- ing: By order of this court, you are hereby cited and required to appear before the judge of this court, at the courtroom thereof, at the City Hall, in the city and county of San Francisco, on Saturday, the tenth day of December, igo6, at eleven o'clock in the forenoon of that day, then and there to show cause, if any you have, why M. J., the mother of said minors, W. J., C. J., and Cttation. 515 £. /., children of T. J., late of said city and county, deceased, should not be appointed the guardian of the persons and estates of the said minors. Witness, the Honorable /. F. F., judg-e of the said superior court in and for the city and county of San Francisco, state of California, with the seal of said court affixed, this the third day of December, ipo6. NOTE. — In California a citation must be directed to the person to be cited, signed by the clerk, and issued under the seal of the court, and must contain: 1. The title of the proceeding; 2. A brief statement of the nature of the proceeding; 3. A direction that the person cited appear at a time and place specified. It may be issued by the clerk upon the application of any party without an order of the judge, ex- cept in cases in which such order is by law expressly required. It must be served in the same manner as a summons is served: C. C. P., sees. 1707, 1709, 1710. If necessary, a citation may be served by publication in like manner of a summons: Trumpler v. CoUon, 109 Cal. 250. Alaska Codes, pt. 4, c. 81, sees. 775, 810, 813, 836, 860, 910; Arizona, C. C, pars. 1928, 1929, 1931, Idaho, C. C. P., sees. 4307, 4308, 4310; Montana, C. C. P., sees. 2914, 2915, 2917; Nevada, Comp. Laws, sec. 3033; New Mexico, Comp. Laws. sees. 1986, 2007, 2009, 2067; North Dakota, Probate Code, sees. 6191, 6204, 6212, 6291, 6292, 6487, 6581; Oregon, Codes and Statutes, sec. 1148; South Dakota, Probate Code, sees. 56, 106, 110. 115, 203, 273, 335, 337; Utah, Rev. Stats., sec. 4034; Washington. Ballinger's Codes, sec. 6081; Wyoming, Rev. Stats., sees. 4544, 4545, 4547. No. 873. — Citation — Executor on Petition for Distribution. [Title of Court and Cause.] /. C. R., Executor of the Will of S. D., Deceased, Greeting: You are hereby cited to be and appear in our superior court of the city and county of San Francisco, at the courtroom of Depart- ment No. 10 — Probate — thereof, at the City Hall, in said city and county of San Francisco, on Monday, the 2gth day of May, A. D. 1905, at 10 o'clock, A. M., of that day, then and there to show cause, if any you have, zvhy the petition of M. G. S., and of the Af. T. Company of San Francisco, as the executor of the will of H. W. D., deceased, for a partial distribution to them of the es- tate of the said S. D., should not be granted. NOTE. — California, C. C. P., sec. 1659; Arizona, C. C, par. 1887; Idaho, C. C. P., sec. 4271; Montana, C. C. P., sec. 2831; Nevada. Comp'. Laws, sec. 2994; Oregon. Codes and Statutes, sec. 1223; T'tah, Rev. Stats., sec. 394S; Washington, BalUnger's Codes, sec. 6348; Wyoming Bev. SUts., sec. 4827. 5i6 New Book of Forms. No. 874. — Citation to Banker to Appear and Answer as to Unclaimed Deposit. [Title of Court and Cause.] The People of the State of California, to the C. S. and L. S., its President, Secretary, Cashier, Treasurer, or Other Officer or Officers Havings Charg-e and Custody of Its Books, Registers or Papers Containing- Names, Signatures, or Other Marks of Identification of Its Depositors, Greeting: You are hereby cited to be and appear in our superior court of the city and county of San Francisco, at the courtroom of Depart- ment No. 2 — Probate — thereof, at the City Hall, in said city and county of San Francisco, on Tuesday, the 21st day of February, A. D. ipo^, at p :45 o'clock A. M. of that day, then and there to show cause, if any you have, why an order of this court should not be made requiring you to deliver to W. A., as administrator of the estate of the above-named A. A., deceased, such sum as may be due and unpaid on a certain deposit made in the said C. S. and L. S. by a person of that name, either under said name or under the name of A. M. or A. M. A., amounting to $1,2^,1.46, or there- abouts ; and then and there to bring and have with you any and all books, registers and papers of said society containing any en- try or entries referring to said A. M., or A. M. A., and to be examined on oath concerning the same. NOTE.— California, C. C. P., sec. 1461; Aris^ona, C. C, pnr. 1724; Idaho, C. C. P., sec. 4118; Montana, C. C. P., sec. 2573; Nevada, Corap. Laws, sec. 2884; North Dakota, Probate Code, sec. 6581; Oregon, Codes and Statutes, sec. 1151; Washington, Ballinger's Codes, sec. 6214; Wyo- ming, Rev. Stats., sec. 4692. No. 875. — Citation to Savings Bank — Answer to. [Title of Court and Cause.] Now comes the C. S. and L. S., and responding to the citation issued in the above-entitled matter and addressed to the respond- ent: T. Here it appears, and by its secretary produces for inspection all books and papers in the possession or control of said respondent containing any entry referring to A., A. M., or A. M. A., and is ready to be examined on oath, or otherwise, concerning the same. 2. As to any and all other requirements of said citation, said respondent objects and demurs thereto, and says that this court has no right, authority or jurisdiction in said matter of said estate to make said requirements, or any or either of them, this res]X)nd- ent here claiming the right to have a determination of all the mat- Citation. 517 ters of said other requirements, namely, as to its rights and ob- hgations under the alleged deposit of moneys by A. A., with re- spondent, as a savings bank, made and adjudicated by a court of law or equity in such action or proceeding as will be finally de- terminative of the said rights and obligations of respondent in respect to or growing from said alleged deposit with it, and pro- tect this respondent in complying with the final determination and adjudication of such court in such action. And. this respondent hereby demurs to all and all parts of the petition of W. A., upon which said citation was issued and is based, save that alleging that respondent has books containing en- tries tending to disclose the identity of A. A. as a depositor of re- spondent S. S., with the deceased, in whose estate said petition is filed and asking the production and inspection of said books, upon the grounds: 1. That this court in this proceeding has no jurisdiction of the person of this respondent, nor of the subject of said parts of said petition. 2. That said parts of said petition and the allegations there- of do not constitute a cause of action herein against this respond- ent, nor show any cause for the relief by said parts of said petition sought and prayed for. Wherefore respondent asks that said citation and the order to show cause therein contained be discharged. NOTE.— California, C. C, sees. 1459, 1460; Arizona, C. C, par. 1722; Idaho, C. C. P.. sec. 4116; Montana, C. C. P., see. 2571; Nevada Coinp. Laws, sec. 2882; Oregon, Codes and Statutes, sec. 1148; Utah, Rev. Stats., sec. 3927; Washington, Ballinger's Codes, sec. 6212; Wjoming, Eev. Stats., sec. 4690. No. 876. — Citation — Inheritance Tax. [Title of Court and Cause.] The People of the State of California, to A. B., Greeting: You are hereby cited to be and appear in our superior court of the county of Napa, at the courtroom thereof, in said countv, on the jd day of Jufie, A. D. igo6, at 10 o'clock A. M., of said dav, to show cause why you should not pay an inheritance tax imposed upon the property of the above-entitled estate, in which vou are interested, as provided by the laws of the state of California, es- tablishing a tax on gifts, legacies, inheritances, bequests, devises, successions and transfers. NOTE.— Act of March 20, 1905; Stata., p. 341, sees, 17, 20. 5i8 New Book of Forms. COMMITMENT. No. 877. — Commitment to Prison — General. [Title of Court and Cause.] The district attorney, with the defendant and his counsel, came into court. The defendant was duly informed by the court of the nature of the charge against him for the crime of petit larceny, committed on the fifth day of July, ipo6, of his indictment [or of the information filed against him], arraignment, and plea of "Not guilty of the offense charged in the indictment" [informa- tion], of his trial and the verdict of the jury, on the third day of August, ipo6, "Guilty as charged in the indictment" [informa- tion], and the defendant was then asked if he had any legal cause to show why judgment should not be pronounced against him. To which he replied that he had none. And no sufficient cause be- ing shown or appearing to the court, thereupon the court rendered its judgment as follows: That whereas the said /. S., having been duly convicted in this court of the crime of petit larceny [or other crime] : It is therefore ordered, adjudged and decreed, that the said /. S. be punished and imprisoned in the county jail of the county of San Mateo, in the state of California, for the term of one year. The defendant was then remanded to the custody of the sheriff of the said county [or in the state prison]. Office of the County Clerk, Of the County of San Mateo, State of California. I, H. W., county clerk of the county of San Mateo, state of California, do hereby certify the foregoing to be a full, true, and correct copy of the judgment duly made and entered on the minutes of the said superior court in the above-entitled action, and that I have compared the same with the original ; that the same is a correct transcript therefrom, and of the whole thereof. Attest my hand and seal of the said superior court, this iifth Az\ of August, IQ06. [Seal] H. W., Clerk. By P. S., Deputy Clerk. INDORSED AS follows: [Title of Court and Cause.] Whereas, /. S., having been duly convicted in the superior court of the county of San Mateo of the crime of petit larceny, and COMMITMEINT. 519 judgment having been pronounced against him, that he be pun- ished by imprisonment in the county jail of the county of San Mateo, in the state of California, for the term of one year. All of which appearing to us of record, and a certified copy of the judgment being indorsed hereon and made a part thereof: Now, this is to command you, the said sheriff of the county of San Mateo, to take and safely keep and imprison the said /. S. in the county jail of the said county of San Mateo, state of Cali- fornia, for the term of one year. And these presents shall be your authority for the same. Herein fail not. Witness, Honorable £. F. H., judge of the superior court of the county of San Mateo, this tifth day of August, igo6. Attest my hand and the seal of the said court the day and year last above written. NOTE.— California, Pen. C^ sees. 1017, 1207, 1213. In aU other states and territories this form may be used. No. 878. — Commitment — Juvenile Court. [Title of Court and Cause.] The above-named C. D. having been brought before the superior court of the state of California in and for the county of Butte, upon the order and certification of the superior court of the said county, as a delinquent child charged in said superior [juvenile} court with the offense of malicious mischief, and upon a full hear- ing in this court had on the jrf day of Juyie, A. D. ipo6, after due notice given, it appearing that it is for the best interest of said child that he should be committed to the care of A. B. E. D. for the period of six m-onths. Now, therefore, it is hereby ordered and adjudged that said C. D. be committed to the care of A. B. B. D. for the period of six months. No. 879. — Commitment — Juvenile Court. [Title of Court and Cause.] The above-named A. B. having been regularly brought before the above-entitled court upon petition duly verified and filed herein as provided by law, said petition showing that said A. B. is within said county of Butte and is a dependent child within the meaning of the law, and due notice of the hearing of said petition having been given as required by law and the order of this court, and due return having been made on the citation is- sued herein, upon a full hearing of said petition and of the case, it appearing to the satisfaction of tlie court tliat said A. B. is 520 New Book of Forms. under the age of sixteen years, to wit, of the age of ten years and within said county of Butte, and is a dependent child within the meaning of the law ; and it further appearing that it is for the best interest of said child that he be committed to the care of E. P.; it appearing that said E. F. is a proper person in have such case, and that said E. F. is willing to receive said child, if committed thereto by this court. Now, therefore, it is hereby ordered, adjudged and decreed that said A. B. is a dependent child within the meaning of the law, and that he be. and he is hereby, committed to the care of E. F., for the period of one year. COMPLAINT— PLEADINGS. No. 880. — Complaint — Acceptor, Without Funds, vs. Drawer. [Title of Court and Cause.] The plaintiff complains and alleges: 1. That on the fourteenth day of March, igo6, at M., the de- fendant became indebted to him for money advanced by him, and paid by him, upon a certain draft drawn by the defendant, bear- ing date on the fourteenth day of February, IQ06, whereby the de- fendant requested the plaintiff, thirty days after date, to pay to one A. B., the sum of $500. 2. That on the fourteenth day of March, ipo6, at M., the plain- tiff accepted said draft, and paid it. [Or, 2. That the plaintiff' accepted said draft, and paid the same at maturity.] 3. That at the time of the acceptance and payment of said draft, the plaintiff was without funds of the defendant in his hands to meet the same. 4. That the defendant has not paid the same, nor any part thereof. No. 881. — Complaint — Administrator, by. [Title of Court and Cause.] The plaintiff, as such administrator, complains, and alleges: 1. [State cause of action accruing to the intestate.] 2. That on the twenty-first day of February, ipo6, at A''., the said A. B. died intestate. 3. That on the tu'enty-fifth day of February, 1906, letters of administration upon the estate of the said A. B. were issued by Complaint — Pleadings. 521 the superior court of the county of Fresno, in this state, to the plaintiff. 4. That the plaintiff thereupon duly qualified as such admin- istrator, and entered upon the discharge of the duties of his said office, and that said letters of administration have not been revoked. No. 882. — Complaint — Administrator or Executor. [Title of Court and Cause.] The plaintiff complains and alleges : 1. [State cause of action a'^ainst the decedctjt.] 2. [Allege death of decedent, and defendant's appointment as administrator or executor, as in preceding forms.] 3. That said defendant, as such executor [or administrator], in pursuance of an order of the superior court of San Diego county caused a notice to creditors of said deceased to be published in the Ncjvs, the same being the newspaper designated by said court, requiring all persons having claims against said deceased to ex- hibit them, with the necessary vouchers, to the said executor [or administrator], at [specify the place], the same being specified therein as his place of business, within ten months after the first publication of said notice ; that said notice was first published on the eighth day of June, ipo6. 4. That on the tzventy-seventh day of May, 1906, at M., the claim hereinbefore set forth, verified by the oath of the claimant, and upon which this action is founded, was duly presented in writing by the plaintiff to the defendant, as such administrator [or executor], for allowance. And that the same was by him, as such administrator [or executor], rejected on the thirtx-first day of May, ipo6: that a copy of said claim as presented is hereunto attached and made a part of this complaint. No. 883. — Complaint — Arrest, Malicious, for. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the first day of August, 1906, the defendant, ma- liciously intending to injure the plaintiff, made affidavit, and pro- cured one A. B. to make an affidavit, in an action brought against this plaintiff by defendant, in which he alleged [set forth the grounds of the false arrest] ; and that upon said affidavits the defendant caused to be issued an order of arrest against this plaintiff, under which the plaintiff was arrested and imprisoned for the space of twenty days, and compelled to give bail in the sum of $1,000. 2. That in so doing the defendant acted maliciously and with- out probable cause. 522 New Book of Forms. 3. That on the fifteenth day of August, igo6, said order was vacated by said court, upon the ground that [set forth the grounds upon which it was vacated]. [Or, 3. That on the twenty-fifth day of August, igo6, such proceedings were had in such action, that it was finally deter- mined in favor of this plaintiff, and judgment was rendered for him therein.] 4. [Special damage.] That many persons, whose names are unl-mown to plaintiff, hearing of the arrest, etc., to the damage to the plaintiff $2,/jo. No. 884. — Complaint — Assignee — Trust, Wife, for. [Title of Court and Cause.] The plaintiff complains, and alleges : 1. [Allege incorporation cls heretofore.] 2. [Same as by executor on life policy.] 3. That on the first day of March, 1906, the said A. B. [with the written consent of the defendants, or otherwise, according to the terms of the policy] , assigned said policy of insurance to this plaintiff, in trust for E. B., his wife. 4. That up to the time of the death of A. B. all premiums ac- crued upon said policy were fully paid. 5. That on the Hfth day of June, 1906, at L., said A. B. died. 6. That said A. B. and the plaintiff each performed all the conditions of said insurance on their part, and the plaintiff, more than ten days before the commencement of this action, to wit, on the tenth day of June, ipo6, at L., gave to defendants notice and proof of the death of said A. B., as aforesaid, and demanded pay- ment of the said sum of $10,000. 7. That the defendant has not paid the same, nor any part thereof. No. 885. — Complaint — Assignee for Creditors. [Title of Court and Cause.] The plaintiff, as assignee for the benefit of the creditors of A. B., complains of the defendant and alleges : 1. [State a cause of action accrued to the assignor.] 2. That on the ninth day of August, ipo6, at S. P., the said A. B. assigned all his property, including the said claim to the plain- tiff [in trust for the purpose of paying all his debts]. [Demand of judgment.] CoMPL,AiNT — Pleadings. 523 No. 886. — Complaint — Attorney for Negligence. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That the defendant is, and at all the times hereinafter men- tioned was, an attorney of the supreme court of this state; that the plaintiff, on or about the month of January, 1Q06, retained and employed him as such attorney to prosecute and conduct an action in the superior court of the county of Yuba, state afore- said, on behalf of this plaintiff, against one A. B., for the recovery of $1,500 due from him to this plaintiff and the defendant under- took to prosecute said action in a proper, skillful and diligent man- ner, as the attorney for the plaintiff. 2. That the defendant might, in case he had prosecuted said action with due diligence and skill, have obtained final judgment therein for this plaintiff before the twenty-fifth day of March, ipo6, but he so negligently and unskil! fully conducted said ac- tion, that by his negligence, delay and want of skill he did not obtain judgment until the tiventicth day of May, 1906, and that meanwhile said A. B. had become insolvent; whereby the plain- tiff was hindered and deprived of the means of recovering said sum of money, and that the same has not, nor has anv part thereof, been recovered or made by plaintiff, to his damage $1,500. No. 887. — Complaint — Bills, Foreign — Payee vs. Drawer. [Title of Court and Cause.] The plaintiff complains, and alleges : 1. That on the sixth day of March, 1906, at M., the defend- ant made and delivered to the plaintiff his certain bill of exchange of that date, of which the following is a copy: [Copy the bill.'\ 2. That on the sixth day of May, ipo6, the same was duly presented to the said A. B. for acceptance, but was not accepted, and was thereupon duly protested for nonacceptance. 3. That due notice thereof was given to the defendant. 4. That he has not paid the same. 5. That the value of a similar bill of exchange at the time of said protest, in M., that being the place where said bill was nego- tiated, and where such bills were currently sold, was ^7,000. Wherefore, the plaintiff demands judgment against the defend- ant for the sum of ^7,000 (the amount named in the bill) and $200 damages, and interest on the said sums from the sixth day of May, ipod [date of protest], and costs of suit. 524 New Book of Forms. No. 888. — Complaint — Bond, Official, on. [Title of Court and Cause.] The plaintiff complains, and alleges: I. That the defendant, on the tzventy-ninth day of June, ipo6, at P., made and delivered his bond, or writing obligatory, sealed with his seal, of which the following is a copy: [Copy bond.] [Set forth breach.] [Demand of judgment.] No. 889. — Complaint — Borrower vs. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the sixth day of January, ipo6, at P., he lent to the defendant, at his request, $500. 2. That the defendant has not paid the same nor any part thereof. Wherefore, the plaintiff demands judgment for $500, with in- terest from the sixth day of January, 1906. No. 890. — Complaint — Builder vs. — Special Damage for Loss of Rent. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the fourteenth day of May, igo6, at P., the plain- tiff and the defendant entered into an agreement, under their hands and seals, of which a copy is annexed as a part of this complaint, marked "Exhibit A." 2. That the plaintiff duly performed all the conditions thereof on his part. 3. That the defendant entered upon the performance of the work under said contract, but has neglected to finish the said contract [state what he has neglected], and that although the time for the completion of said building expired before the com- mencement of this action, he neglects and refuses to complete the same. 4. That the plaintiff, on the -fifteenth day of June, igo6, at P., made an agreement with one A. B., whereby he agreed to let, and said A. B. agreed to hire, the said building for tzvo months, from the sixteenth day of June, igo6, to the sixteenth day of August, ipo6, at the monthly rent of $2^0, of which the defendant had notice. Complaint — Pleadings. 525 5. That by reason of the defendant's faihire to complete the contract aforesaid on his part, the plaintiff has been unable to give said A. B. occupancy thereof, and has been thereby deprived of the profits of said lease, to his damage $750 gold coin. [Annex agreement marked "Exhibit A."] No 891. — Complaint — Cattle, Trespassing. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That during all the times hereinafter mentioned he was, and now is, the owner, and lawfully in possession of all that cer- tain real estate situated in K. Township, county of Sierra, state of California, and described as follows: [Description.] 2. T'.iat during all of the time between the fourteenth day of February, igo6, and the third day of March, igo6, the defendant was the owner, in possession of, and chargeable with the care of certain animals, to wit: sheep. 3. That at divers times between said last mentioned dates said animals ran and trespassed upon said lands, ate up, injured, and destroyed the grain, hay, and verdure being and growing thereon. ^ 4. That in consequence of said animals so running, trespass- [ ing, eating up, injuring, and destroying the said grain, hay, and verdure, which was then upon said land, plaintiff' has been dam- aged in the sum of $2^0. No. 892. — Complaint — Claim and Delivery. [Title of Court and Cause.] W. J. H., the plaintiff, in the above-entitled action, complain- ing of G. T., the defendant, in the said action, alleges: That on the fourth day of June, IQ06, at the county of Sacra- mento, said plaintiff was, and now is, the owner and entitled to the possession of the following described personal property, to wit: [Description.] That said personal property is of the value of one thousand dollars. That said defendant on the fourth day of June, 1906, at the city and county of San Francisco, without the plaintiff's consent, and wrongfully, came into the possession of said personal prop- erty, and still retains possession of the same, and he claims to be the onmer of the same. That before the commencement of this action, to wit : on the fourth day of June, ipo6, at the place last aforesaid, tlie plaintiff 526 New Book of Forms. demanded of the defendant the possession of said personal prop- erty, but to deliver the possession thereof the defendant refused, and still refuses. That the defendant still unlawfully withholds and detains said property from the possession of the plaintiff, to his damage in the sum oi one thousand dollars. That the same has not been taken for a tax, assessment, or fine, pursuant to a statute, or seized under an execution or an attachment against the property of the plaintiff [or if it has been so seized or attached, allege the fact and aver that the said prop- erty is by lazv exempt from execution]. Wherefore, the plaintiff demands judgment against the defend- ant for the recovery of the possession of said personal property, or for the sum of one thousand dollars, the value thereof, in case a delivery cannot be had, together with five hundred dollars dam- ages, and for costs of suit. No 893. — Complaint — Collision, Injuries by [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the fourth day of August, ipo6, the defendant was a corporation duly incorporated under the laws of this state, and was the owner of a certain railroad, known as the Stockton and Fresno Railroad, together with the track, rolling stock, and other appurtenances thereto belonging; and was a common carrier of passengers thereupon for hire, between Stockton and Fresno, in the state of California. 2. That on that day the defendant, in consideration of the .sum of $2j, then paid to it by the plaintiff therefor, undertook and agreed, as such common carrier, to transport and convey the plaintiff from Stockton to Fresno, as a passenger, and the plain- tiff thereupon entered one of the cars of the defendant^ to be so conveyed as aforesaid from Stockton to Fresno, aforesaid. 3. That while he was such passenger, at L. [or near the sta- tion of L., or between the stations of L. and M.], a collision occurred on the said railroad caused by the negligence of the defendant and its servants, whereby the plaintiff was much in- jured [state the injury according to fact, and the special damage, */ af^y]- . . .J [Or, 3. That the defendant and its servants, m managing said cars in which plaintiff was a passenger, were so careless and negligent that it was unsafe for liim to remain in one of them; and that in order to free himself _ from the danger, he was obliged to leap from the car, and in doing so was injured] [state injury according to the fact.] 4. Bv means whereof the plaintiff hath been damaged in the sum of $2,pgo. Complaint — Pleadings. ^^2"] No. 894. — Complaint — Common Carriers, vs. '[Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the third day of August, ipo6, the defendant was a common carrier of passengers for hire by stagecoach between M. and N. 2. That on that day, as such carrier, he received the plaintiff upon his coach to be carried from M. to N., for the sum of $300, which was then and there paid by the plaintiff to the defendant. 3. That while he was such passenger at N. [or near ^V., or between M. and A'^.], the said coach vvas, by and through the carelessness annd negligence of the said defendant, ovenurned and thrown down, with the plaintiff therein, as aforesaid, by means whereof the said plaintiff' was greatly injured, and one of the legs of said plaintiff' was broken, and fractured, and bruised, and the said plaintiff was otherwise greatly injured, wounded, and cut, insomuch that the said plaintiff then became sick, lame, and sore, and so continued for the space of two months thence next ensuing, and was during all that time prevented from at- tending to his business and carr^-ing on the same, and the said plaintiff was forced to expend, and did expend the sum of $1,000 for medical attendance — and nursing, to his damage, $1,300. No. 895. — Complaint — Compromise, Upon, [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the eleventh day of September, ipo6, an action was pending in the said superior court, brought by the plaintiff to recover from the defendant the sum of $300, for goods sold by plaintiff to the defendant. 2. That on the thirtieth day of September, igo6, at C, in con- sideration that the plaintiff' would discontinue said action, and would accept $400 in satisfaction of his claim, the defendant promised to pay the plaintiff' the sum of $400. 3. That the defendant accordingly discontinued said action. 4. That no part of said sum has been paid. No. 896. — Complaint — Contract to Employ, Breach of. [Title of Court and Cause.] The plaintiff complains, and alleges : I. That on the tzventy-sixth day of May, ipo6. at P., the plaintiff and die defendant mutually agreed tliat the plaintiff 528 New Book of Forms. should serve the defendant as an accountant, and that the defend- ant should employ the plaintiff as such for the term of [one year, or as the case may be] . and pay him for his services $63 monthly [or as the case may be]. _ 2. That on the tzvcnty -seventh day of May, IQ06. the plaintilt entered upon the service' of the defendant under said agreement, and has ever since been, and still is, ready and willing to con- tinue in such service. 3. That on the tzventy-sez>enth day of Aui^ust. igo6, the de- fendant wrongfully discharged the plaintiff, and refused to permit him to serve as aforesaid, though the plaintiff then and there offered to continue in said service, and perform said agreement on his part, to the damage of the plaintiff, $1,550. No. 897. — Complaint — Contract to Manufacture, Breach of. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the thirtieth day of May, 1906, at P., the plain- tiff delivered to the aefendant fifty sides of leather, of the value of $20, to be manufactured into harness for a reasonable compen- sation, to be paid to the defendant by the plaintiff. 2. That the defendant, in consideration thereof, undertook to manufacture the said harness, or cause it to be manufactured from the leather, and to deliver the same to the plaintiff when so manufactured. 3. That the said leather was so manufactured into harness by the "defendant before the thirtieth day of June, ipo6, on which day the plaintiff demanded the same of the defendant, and then and there offered to pay him a reasonable compensation for man- ufacturing the same. [Or, 3. That the defendant did not manufacture said leather into harness, although a rec^onable time therefor elapsed before this action.] 4. That the defendant then, and ever since, refused and neg- lected to deliver the same, and has converted them to his own use. [Or, 4. That the defendant manufactured said leather in such a negligent and unskillful manner, that the said harness was of no value.] No. 898. — Complaint— Contract, Breach of, to Serve, [Title of Court and Cause.] The plaintiff complains, and alleges : I. That on the twenty-seventh day of May, 1906, at P., the Complaint — Pleadings. 1^29 plaintifT and defendant mutually agreed that the plaintiff should employ the defendant at a viont/ily compensation of $^00, and that the defendant should serve the plaintiff as bookkeeper for the term of one year. 2. That the plaintiff has always been ready and willing to perform his part of the said agreement, and on the twenty-ninth day of May, ipo6, offered so to do. 3. That the defendant refused to serve the plaintiff as afore- said, to his damage $2^00. No. 899. — Complaint — Comractor, on Special Contract — Claim for Extra Work. [Title of Court and Cause.] The plaintiff complains, and alleges: First — For the first cause of action : 1. That on the fifteenth day of May, igo6, at P., the defend- ant, under his hand and seal, made a contract in writing with the plaintiff, of which the following is a copy: [Copy contract]. 2. That he has duly performed all the conditions thereof on his part, except that, at the request of the defendant, he finished the building witJi hard finish instead of cloth and paper, for which the defendant promised to pay a reasonable sum in addi- tion to the price named in the contract. That by the consent of the defendant the time for completing said work was extended for one month beyond the time fixed for the contract, to wit, to the fifteenth day of July, ipo6. 3. That the plaintiff on his part duly performed all the condi- tions of said contract as modified. 4. That the sum of $j^o is a reasonable payment to be made, in addition to the price named in said contract, for finishing the building with hard finish instead of cloth and paper. 5. That on the fifteenth day of August, ipo6, at P., the plain- tiff demanded of the defendant payment of the sum of $2,^00, the amount due on said contract as modified. 6. That he has not paid the same, nor any part thereof. Second — For a second cause of action: 1. That between the fifteenth day of May, ipo6, and the fifteenth day of July, igo6, at P., the plaintiff rendered further services and furnished materials to the defendant, at his request, in \here state extra work and material], for which the defend- ant promised to pay. 2. That the same are reasonably worth $480. 3. That he has not paid the same, nor any part thereof. New Forms — 34 530 New Book of Forms. No. goo. — Complaint — Contractor vs. — Street Insecure. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That at the time hereinafter mentioned, the defendant had contracted with one A. B. to lay down pipes in and under the highway known as C. street, in P., for the purpose of supplying the said A. B. with gas, and to make the proper trenches for the purpose, and when such pipes were laid down to fill up properly the said trenches, and to put and leave the said highway clear and in a reasonably secure condition. 2. That the defendant and his servants, on the twenty-fifth day of January, ipo6, took up part of the said highway, and made trenches and holes therein, and laid down said pipes, and dis- placed the earth and material of said highway, and carelessly and negligently left the said highway in a dangerous and improper state, in consequence whereof a horse of the plaintiff, of the value of $1,500, which he was then and there lawfully driving along the said highway, fell into and sunk therein, and was wounded, and lamed, and rendered of no value, to plaintiff's damage $1,300. No. 901.— Complaint— Conversion — Personal Property. [Title of Court and Cause,] The plaintiff complains, and alleges: 1. That on the seventeenth day of January, igoS, the plaintiff was lawfully possessed of [briefly describe the goods], his prop- erty, the value of $800. 2. That on the said day, at P., the defendant unlawfully took and carried away said goods and converted and disposed of the same to his own use, to the damage of the plaintiff $800. No. 902. — Complaint — Condemnation of Land by Corporation. [Title of Court and Cause.] Now comes the above-named plaintiff, and complaining of the above-named defendants, alleges: I. That plaintiff is a railroad corporation, duly incorporated, or- ganized and existing under the laws of the state of California, and that the name of plaintiff is "5^. P. R. Company." Complaint — Pleadings. 531 II. Thrxt said plaintiff is incorporarted for the purpose, amon<^ other things, of constructing-, owning, maintaining and operating a single or double track steam railroad of a standard ,^auge, viz., of 4 feet 8y2 inches, commencing at the city and county of San Francisco, state of California, and running thence in a general southerly direction by the most practicable route to San Bruno, in the county of San Mateo, in said state; that said railroad has been definitely located by plaintiflf over and through the parcel of land hereinafter described, and that said land is necessary for the right of way of said railroad. That the location and general route of said railroad are from a point in the city and county of San Francisco, in the state of California, through said city and county in a general southerly direction, along or near the shore of the bay of San Francisco, to the boundary line of the county of San Mateo, state of Cali- fornia, and thence to the station or village of San Bruno, in said county of San Mateo, and the termini of said railroad are re- spectively the said city and county of San Francisco, and said station or village of San Bruno, and that a map thereof so far as the same is involved in this proceeding, is hereunto annexed, and marked "Exhibit A." in. That the defendant. U. T. Company of San Francisco, is and at all of the times herein mentioned was, a corporation, incor- porated, organized and existing under the laws of the state of California. IV. That upon the §th day of August, iSpp, W. A. P. died testate at the city and county of San Francisco, state of California: that at the time of his death he was a resident of said city and county, and left estate therein, including an undivided half interest in the premises hereinbefore described ; that in and by the last will and testament of said deceased the defendants, U. T. Company of San Francisco, and IV. G. were named as executors thereof; that in a proceeding duly commenced in the superior court of the city and county of San Francisco, state of California, for the ad- ministration of the estate of said W. A. P., deceased, said last will and testament was filed for probate ; that by an order of said court duly made and entered in said proceeding on the 21st day of August, i8gg. letters testamentary were issued to said de- fendants U. T. Company of San Francisco and IV. C, as execu- tors aforesaid ; that said executors thereupon qualified as such, <^ntered upon the discharge of their duties, and ever since have been and now are acting as such executors. 532 New Book of Forms. V. That the fonowinsf is a description of the land so as aforesaid required for the right of way of said railroad of plaintiff, viz. : That certain parcel of land situated in the city and county of San Francisco and state of California and described as follows, to wit: [Description.] That said land is sought to be taken in this proceeding, and that the same does not include the whole, but is only a part of an entire tract. VL That defendants claim to own the tract of land hereinbefore particularly described and also the larger tracts of which it is a part, and are all the owners and claimants, thereof known to plaintiff. VII. That the true names of the defendants, 7. D., R. R., J. B. and P. S., are unknown to plaintiff, and they are therefore herein designated by fictitious names, and plaintiff prays that when their true names are discovered they may be herein inserted by appro- priate amendments to this complaint. VIII. That none of the property hereinbefore described has hereto- f(5re been appropriated to any public use, and that the said rail- road of plaintiff has been located in the manner which will be most compatible with the greatest public good and the least pri- vate injury. Wherefore plaintiff prays that the court will ascertain and assess: 1. The value of the property sought to be condemned, and all improvements thereon pertaining to the realty, and of each and every separate estate or interest therein. 2. The damages which will accrue to the portion not sought to be condemned of the larger parcel of land of which the land hereinbefore particularly described forms a part, by reason of its severance from the portion sought to be condemned, and the con- struction of the improvement in the manner proposed by the plaintiff. 3. How much the portion not sought to be condemned, and each estate or interest therein will be benefited, if at all, by the construction of the improvement proposed by the plaintiff, and if the benefit shall be equal to the damages assessed under the last preceding paragraph of this prayer, that the owner of said parcel shall be allowed no compensation except the value of the portion taken, but if the benefit shall be less than the damages so Complaint — r^E.^DiNCS, 533 assessed, the former may be deducted from the latter, and the remainder be the only damages allowed in addition to the value. 4. The cost of good and sufficient fences along the line of the railroad of plaintifif, and the cost of cattle-guards where fences may cross the line of said railroad. 5. That plaintiff have judgment against defendants condemn- ing the premises, hereinbefore particularly described, to public use for the purposes hereinbefore set forth, as provided by law, and, thereafter, upon compliance with the requirements of said judgment, and the provisions of Title VII of Part III of the Code of Civil Procedure in that behalf contained, a final order of condemnation of said premises be made and entered herein, and for such other and further relief as may be meet in the premises. Verified. NOTE.— CaUfomia, C. a P., sec. 1243. No. 903, — Complaint — Copartnership on Draft Accepted and Paid. [Title of Court and Cause.] The plaintiffs complain and allege: 1. That on the fifteenth day of March, igo6, the defendants, then composing the firm of C. D. & Company, drew their certain bill of exchange, in said copartnership name, at M., and directed the same to the plaintiffs at M., who then were and now are co- partners, doing business under the firm name of A. B. & Com- pany, by which bill of exchange the said defendants requested the plaintiffs to pay to the order of said defendant, four months after date, the sum of $1,2^0, for value received. 2. That said bill of exchange the plaintiffs afterward ac- cepted and paid in full. 3. That no funds were provided by said defendants, either be- fore or after the same was drawn as aforesaid, for the payment thereof, and the plaintiffs have had no funds of said defendants at any time in their bands to pay the same. No. 904. — Complaint — By Corporation. [Title of Court and Cause.] The plaintiff complains and alleges: I. That it is a corporation organized and existing under the laws of the state of Nevada, and is doing business as such in its said corporate name. 534 New Book of Forms. No. 905. — Complaint — Corporation vs. — Assault and Ejection. [Title of Court and Cause.] The plaintiff complains and alleges: 1. That at the time hereinafter mentioned, the defendant was, and now is, a corporation, duly organized under and pur- suant to the laws of this state, and was the owner of a certain railroad known as the C. P. R., with the track, cars, and other appurtenances thereunto belonging, and was a common carrier of passengers from P. to R. 2. That on the eleventh day of July, 1006, at P., the defend- ant, with unnecessary violence, assaulted the plaintiff, and forcibly ejected him from one of its cars. 3. That the plaintiff was thereby disabled from attending to his business for three weeks thereafter, and has ever since been disabled from using his left foot, or othcrzvise, and was compelled to pay $1,000 for medical attendance, to the damage of the plain- tiff $2,750. No. 906. — Complaint — Corporation Assessment. [Title of Court and Cause.] The plaintiff complains and alleges: 1. That in pursuance of an act of the legislature of the state of California, entitled [give the title of the act], passed October p, igo6, and the acts amendatory thereof and supplementary there- to, the above-named company was organized and formed into a corporation under the name of tlie A. L. Company, and ever since Hs said organization has had its principal office and place of business at the city of B. 2. That on the fourth day of November, igo6, at B., defend- ant and certain other persons being desirous of associating them- selves together for the purpose of constructing a toll road [or state the actual purpose] from the village of R. to the village of S., in said county, in consideration thereof and of the mutual promises each to the other, and of the benefits to be derived from b^ing members of said association, made and subscribed a cer- tain agreement in writing, as follows, to wit: [Copy subscription paper, zuith subscribers' names, and add:] and other persons whose names are here omitted. 3. That the said defendant did, at the time of subscribing said agreement, set opposite to his name thereto subscribed the number of five shares, and that the par value of each share is $50, and that said defendant agreed to take and pay for the same. Complaint — Plkadincs. 535 4. That afterward, to wit: on the fifth day of December, 1906, at a reijular meeting of the trustees of said company, an assess- ment of five per cent of the par value of each share of the cap- ital stock of said corporation was duly levied; that at the time of the levy of such assessment, defendant was a subscriber to the capital stock of said corporation in the amount of 7,000 shares, of the par value of $50, and was the owner of such stock. 5. That afterward, etc. [Allege the number of assessments defendant has failed to pay, each as above.] 6. That the defendant had due notice of each of the said as- sessments, made by the trustees of said company, as aforesaid, and that the same were duly published in the D. R., a newspaper printed and published in the city of B., for at least ten days, and in every respect according to law. 7. That the whole sum of $2^0 is now due plaintiff from de- fendant thereon, and no part thereof has been paid. No. 907. — Complaint — Corporation, Directors vs. [Title of Court and Cause.] The plaintiff complains and alleges: 1. That before the time hereinafter mentioned, at P., a cor- poration was formed or pretended to be formed for the purpose of insuring property against losses by fire, and for other pur- poses; which corporation was named the M. N. I. Company. 2. That the said company was organized, or pretended to be organized, under the provisions of a law of this state, passed [date of act], entitled "An Act," etc. 3. That the charter of said company provided, among other things, that the capital thereof should be $jO,ooo, to be paid up in cash. 4. That at the times hereinafter mentioned, the defendants were [or represented themselevs to be] directors of said company. 5. That at sundry times between the twenty-fourth day of March, igo6, and the fifth day of August, ipo6, the defendants represented to the public at large [or to the plaintiff] that the said company had a paid-up cash capital of $§0,000. 6. That on the tenth day of August, 1906, at P., the defend- ants published a statement, showing that the profits of the said company amounted to $2,§oo, and declared a dividend of iive per centum. 7. That the said representations were wholly false, and were then known by the defendants to be so, and were made with intent to deceive and defraud the public, and to induce persons to insure with the said company. That the said company never 536 New Book of Forms. had a cash capital of more than $2^,000, and had not on the said tenth day of August, IQ06, more than $^30 profits. 8. That by the said representations the plaintiff was induced to insure with the said comoany, which according-ly issued to him a policv of insurance, of which a copy is hereto annexed, marked "Exhibit A." 9. That on the Hfteenth day of August, ipod, the property mentioned in the said policy was destroyed or greatly injured by fire, and the plaintiff's loss thereon amounted to $2,^30. 10. That on the seventeenth day of September, ipo6, at P., the plaintiflF obtained judgment against said company upon the said policy for $i,joo, in the superior court of the county of Almneda. [State damages.] No. gcS. — Complaint — Cornoration, Municipal, vs. — Street Insecure. [Title of Court and Cause.] The plaintiff complains and alleges : 1. That the defendant is a municipal corporation, duly organ- ized under the laws of this state. 2. That among other things, it is, by its charter, made its duty to keep the streets in said city in good order, and at all times properly to protect any excavations made in said streets, by placing lights and signals thereat to indicate danger. 3. That a certain street in said city, known as C street, was, and is a common thoroughfare, and used by the citizens thereof ?,nd others, and that the duty of said defendant as to said street was, and became at the time hereinafter mentioned, a matter of public and general concern. 4. That on or about the fourth day of August, ipo6, a deep and dangerous excavation [hole or trench] was dug in said street [or an obstruction was placed in said street, and negligently left therein], and suffered by the defendant, during a night on or about said day, to remain open, exposed, and without proper protection, and without any light or signal to indicate danger. 5. That the plaintiff, on the night aforesaid, was lawfully traveling on said street, and was wholly unaware of danger, and was accidentally, and without fault or negligence on his part, precipitated into said excavation [hole or trench], whereby he received great bodily injury, and was made sick and sore, and was thereby kept to his bed, and detained from business for twenty days, and was in consequence thereof compelled to expend $^30 for medical attendance and nursing, and has been made permanently lame, to hiis damage $2,^30. Complaint — Pleadings. 537 No. gog. — Complaint — Corporation under Special Law. [Title of Court and Cause.] The plaintiff complains, and allesres : 1. That the defendant is a corporation created by and under the laws of this state, orq^nized pursuant to an act of the lej^is- lature, entitled \ title of act in full], passed January to, tqo6, and the acts amendatory- thereof and supplementary thereto. 2. [Staie a cause of action.] No. 910. — Complaint — Corporation — Subscription. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. {Aver incorporation.] 2. That in contemplation of the incorporation of these plain- tiffs, and for the purpose of constructing, owning, and maintain- ing the toll road, then contemplated, the defendant, with others, on the tenth day of January, IQ06, at A., became a subscriber to the stock of the said company by severally signing and delivering an agreement in writing, of which the following is a copy: [Copy subscription paper.] 3. That, among other persons, the defendant signed and exe- cuted said agreement, and set opposite to his name the sum of $100, which he thereby agreed to pay to said company. 4. That after the defendant had thus subscribed, and on or about the sixth day of February, IQ06, he subscribed to the arti- cles of association of said company, his name and his place of residence, to wit: A. B. of C. F., and the number of shares of stock taken by him, to wit : two shares, amounting to $100, the shares of stock being $^0 each. 5. That the plaintiff, by its directors, on the fourth dav of March, J 006, at L. K., tendered to defendant the shares of stock so subscribed for by him, and demanded the defendant to pav thereon the sum of $too, agreeably to said subscription and the charter and by-laws of the company. 6. That the plaintiff has performed all the conditions thereof on its part. 7. That the defendant has not paid the said subscription, or any part tliereof. 538 New Book of Forms, No. 911. — Complaint — County, vs. a. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. [Allege defendant's corporate existence.] 2. That the plaintiff performed services for the said defend- ant in guarding the jail of said county, from the second day of January, 1906, to and including the seventh day of July, 1906. 3. That the sheriff, with the assent, in writing, of the superior judge of said county, employed plaintiff to perform said service as a temporary guard for the protection of the county jail, and for the safekeeping of prisoners, and that said employment was necessary. 4. That said sheriff, at the time of employing said plaintiff, promised plaintiff that the defendant would pay plaintiff for said services what they were reasonably worth, and that said services were reasonably worth the sum of $200. 5. [Allege presentation, rejection, and nonpayment of claim as in preceding form.] 6. [// there are other claims for similar services, performed at different dates, allege them as separate causes of action.] No. 912. — Complaint — Covenant, Breach oL [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the eighteenth day of May, lpo6, at P., the de- fendant, by his deed of that date, duly executed, in consideration of $300, sold and conveyed in fee simple, to the plaintiff, certain land: [Describe it.] 2. That the defendant, by the same deed, covenanted as fol- lows: [Copy the covenant.] 3. That the defendant had not, at the time of the execution of said deed, a good and sufficient title to said premises, and by reason thereof, on the twenty-ilfth day of May, 1906, at P., the plaintiff was ousted and dispossessed of the said premises by due course of law. [Or, 3. That one G. H., at the time of the execution of the said deed, and from thence, had lawful right and paramount title to the said premises, and, by virtue thereof, after the execution of said deed, on the tzventy-ilfth day of May, 1906, entered upon the possession thereof, and ousted and dispossessed by due pro- Complaint — Pleadings. 539 cess of lazv, and kept, and still keeps, the plaintiff from the pos- session of the same. That the plaintiff has also been compelled to pay the costs and chari^es sustained by the said G. If., in prosecuting a certain action in the superior court, in Sonoma county, for the recovery of said premises, which amounted to $500, and to pay out the additional sum of $300 in endeavoring to defend such action.'\ No. 913. — Complaint — Covenant, Encumbrances, vs. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the twenty-second day of May, ipo6, at P., the de- fendant, in consideration of $2,000, to him paid, granted to the plaintiff, by deed, in fee simple, a lot in the town of P., county of Napa [or otherzvise briefly designate the property]. 2. That the said deed contained a covenant on the part of the defendant, of which the following is a copy: [Copy of covenant.] 3. That at the time of the making and delivery of said deed the premises were not free from all encumbrances, but, on the contrary, the defendant before that time, on the twenty-fifth day of January, IQ06, at P., by deed, in the nature of a mortgage, duly executed, had mortgaged the said premises to one R. S., to secure the payment of $900, with interest. 4. And, for a further breach, the plaintiff alleges that on the fifteenth day of February, iQod, in the superior court of Xapa county, in this state, judgment was rendered against the defend- ant for the sum of $400, in an action in which the said encum- brancer was plaintiff, and the defendant herein was defendant, which judgment was, on the nineteenth day of February, ipo6, docketed in said county of [where premises are situated], and which judgment, at the time of the execution and delivery of the deed in the nature of a mortgage, remained unpaid and unsatis- fied of record. 5. And, for a further breach, the plaintiff alleges that at the time of the execution and delivery of said deed the premises w'ere subject to a tax theretofore duly assessed, charged, and levied upon the said premises by the said city of P., and the officers thereof, of the sum of $^0, and which tax was then remaining due and unpaid, and was at the time of the delivery of said deed a lien and encumbrance by law upon the said premises. 6. That by reason thereof the plaintiff paid on the third day of June, igo6, the sum of $135, in extinguishing the [here state what, whether the judgment, lien, tax, or other cncumbrajucs, or all of them], aforesaid, to his damage $1,330. 540 New Book of Forms. No. 914. — Complaint — Covenant. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the tzventy-fifth day of May, igo6, at P., the de- fendant, by deed [or lease under seal] let to the plaintiff, and the plaintiff rented from the defendant, the house numbered 61 R. street, in P., for the term of three years, covenanting that the plaintiff should quietly enjoy possession thereof for the said term. 2. That on, etc., one A. B., who was the lawful owner of the said house, lawfully evicted the plaintiff therefrom, and still with- holds the possession thereof from him. 3. That the plaintiff was thereby prevented from continuing the business of merchandising at the said place, and was compelled to expend $1,000 in moving, and lost the custom of C. D., E. F., and G. H., and divers other persons, by such removal. No. 915. — Complaint — Credit, Fraudulently Procuring. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the twenty-second day of March, IQ06, at P., the defendant represented to the plaintiff that one C. D. was solvent and in good credit, and worth $2,y§o over all his liabilities. 2. That the plaintiff was thereby induced to sell to the said C. D. [state articles sold] of the value of $2,2^0, on three months' credit. 3. That the said representations were false in this, that the said C. D. was not then and there solvent and in good credit, and worth $2,y§o over all his liabilities ; but, on the contrary thereof, the said C. D. was then and there insolvent and not in good credit, all of which was well known to the defendant, and said represen- tations were made by him with intent to deceive and defraud the plaintiff [or to deceive and injure the plaintiff]. 4. That the said C. D. did not pay for the said goods at the expiration of the credit aforesaid [or has not paid for the said goods, and the plaintiff has wholly lost the same by reason of the premises]. No. 916. — Complaint — Creditor vs. Stockholder. [Title of Court and Cause.] The plaintiff complains, and alleges: I. That at the times hereinafter mentioned, the B. C. Com- pany was a corporation created by and under the laws of this Complaint — Pleadings. 541 state, orj^anized pursuant to an act entitled [title of act] passed December ij, igo6, and the acts amending the same, and suijple- mentary thereto. 2. That on the fourth day of April, 1906, said company, by its accent duly authorized thereto, made its promissory note, dated on that day, a copy of which is hereto annexed, and marked "Ex- hibit A." 3. That on the sixteenth day of December, ipo6, in an action in the court of A. L. D., Esq., justice of the peace of C. W. town- ship, county of Yuba, to recover the same from said company, judgment was rendered by said court against said company in favor of the plaintiff for $225, being $200, the amount due there- on, with interest amounting to ^-'5 and costs. 4. That execution thereon was thereafter issued against said company, and returned wholly unsatisfied. 5. That at the time said debt was contracted, the defendant was a stockholder of said company, holding stock therein to the amount of ^7. 000, being 10 shnres of the par value of $100 each; and that he is still such stockholder therein. ["Exhibit A" annexed.'] No. 917. — Complaint — Delivering, for not. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the eleventh day of June, 1906, at P., the plaintiff agreed with the defendant to buy of him, and the defendant then agreed to sell to the plaintiff, and to deliver to him on the tzventv- first day of June, 1906, at P., fifty thousand bushels of oats, at the price of 50 cents per bushel, to be paid for on delivery thereof. 2. That the said time for the delivery of the said oats has elapsed, and that plaintiff has always been ready and willing to receive the said oats, and to pay for them at the price aforesaid, on delivery, according to the terms of said agreement, of all of which the defendant had notice. 3. Tliat the defendant has not delivered the same, nor any part thereof, to the plaintiff, at P., or elsewhere. 4. That the plaintiff has thereby lost profits, and has sustained damage to the amount of $12,2^0. No. 918. — Complaint — Devisee, by. [Title of Court and Cause.] The plaintiff, as devisee of A. B., deceased, complains, and aJ- leges : I. [State cause of action accrued to deceased.] 542 New Book of Forms. 2. That the said A. B. was seised of the estate hereinbefore mentioned, and that he died on the second day of July, igo6, at S., and by his last will devised tlie same to this plaintiff. No. 919. — Complaint — Ejectment. [Title of Court and Cause.] The plaintiff above named, complaining of defendant above named, for cause of action, alleges : That on the fourth day of March, ipo6, the said plaintiff was the owner and seised in fee, and entitled to the possession of all that certain lot of land situate in the city and county of San Francisco, state of California, and described as follows, to wit: [Description.] That while the plaintiff was such owner, and so seised arwl possessed, and entitled to the possession of said land and prem- ises, the said defendant did, on the day and year aforesaid, wrong- fully and unlawfully enter into and upon the same, and oust and eject the plaintiff therefrom, and ever since that day, wrongfully and unlawfully withheld, and still and now wrongfully and un- lawfully does withhold, the possession thereof from the plaintiff, to his wrong, injury, and damage in the sum of two hundred dol- lars. That the value of the rents and profits of the said land and premises is two hundred and fifty dollars per month, and that by reason of the unlawful withholding of the said land by the de- fendant, as aforesaid, plaintiff has been deprived of said rents since the first day of January, ipo6, and by the continuance there- of will he deprived of the use and occupation of the same, to his loss and damage in the sum of seven hundred and fifty dollars. Wherefore, the plaintiff prays judgment against the said de- fendant for the restitution of said land and premises, and for the sum of tive hundred dollars damages for the withholding thereof, and two hundred and fifty dollars damages caused by the loss of the value of the rents and profits thereof, together with his costs of suit. No. 920. — Complaint — Ejectment. [Title of Court and Cause.] /. D., the plaintiff in the above-entitled action, complaining of R. R., the defendant in said action, alleges: That he was, on the first day of June, ipo6, and for two years and upzvards next prior thereto had been, lawfully possessed, and is now entitled to the possession, of that certain piece of land, Complaint — Pleadings. 543 situate in the city and county of San Francisco, state of Califor- nia, described as follows: [Description.] That the plain tiff being so possessed, the defendant afterward, on the second day of June, igo6, unlazvfully entered into the pos- session of the demanded premises, and ousted the plaintiff, and now unlawfully withholds the possession thereof from the plain- tiff, to his damage in the sum of one hundred dollars. That the value of the rents, issues, and profits of the said premises from the said second day of June, igo6, and while the plaintiff has been excluded therefrom by the defendant, is tiz'e hundred dollars. Wherefore, the plaintiff prays judgment against the defendant for the restitution of the possession of the demanded premises, and for the sum of one hundred dollars, for the withholding there- of, together with the sum of tive hundred dollars, the value of the said rents, issues, and profits, and costs of suit. No. 921. — Complaint — Engineer, Injuries to. [Title of Court and Cause.] The plaintifif complains, and alleges: 1. That on the eighth day of August, IQ06, the defendant was a corporation, duly incorporated under and pursuant to the laws of the state of California, and was the owner of a certain rail- road, and of a locomotive propelled by steam on said railroad, and by said defendant used and employed in carrying and convey- ing passengers and goods [or hauling trains of cars coutai)iing passengers and goods'], upon and over the said railroad of the said defendant, from L. to F. 2. That the said plaintiff on the day and year aforesaid, at L. aforesaid and at the time of the committing of said grievances, was in the employ of the said defendant, as engineer upon said locomotive, so moved and propelled by steam as aforesaid, and that it then and there became, and was the duty of the said de- fendant to procure a good, safe, and secure locomotive, with good, safe, and secure machinery and apparatus. t« move and propel the same as aforesaid. 3. That the said defendant conducted itself so carelessly, neg- ligently, and unskill fully, that by and through the carelessness, negligence, and default of the said defendant and its servants, it provided, used, and suffered to be used, an imsafe, defective, and insufficient locomotive, of all of which it had notice. 4. That for want of due care and attention to its duty in that behalf, on the said eighth day of August, IQ06, at L., aforesaid, and while the said locomotive was in the use and service of said 544 New Book of Forms. defendant, upon said railroad, and whilst the said plaintiff was on the same, in the capacity aforesaid, for the said defendant, the boiler connected with the engine of the said locomotive, by reason of the unsafeness, defectiveness, and insecurity thereof, exploded, whereby large quantities of steam and water escaped therefrom, and fell upon the said plaintiff, by which he was greatly scalded, burnt, and wounded, and became sick, sore, and disordered, and so remained for the space of one month, and was compelled to ex- pend the sum of $1,300 for medical attendance, and was pre- vented from attending to his ordinary business, and lost all the wages he otherwise would have earned, to wit, the sum of $1,000, to his damage $2,300. No. 922. — Complaint — Executor, by. [Title of Court and Cause.] The plaintiff, as such executor, complains, and alleges: 1. [State cause of action.] 2. That the said C. D. in his lifetime made and published his last will, whereby he appointed the plaintiff executor thereof. 3. That on the fifth day of January, 1903, at K. L., the said C. D. died. 4. That on the tzvelfth day of January, 1906, at K. L., said will was proved and admitted to probate, in the superior court in the county of Tulare, in this state. 5. That thereupon, on the fifteenth day of January, 1906, let- ters testamentary were issued on the said will to the plaintiff, by the superior court of said county. 6. That thereupon the plaintiff duly qualified and entered upon the discharge of his duties as executor, and that said letters tes- tamentary have not been revoked. No. 923. — Complaint — Executor v. Railroad Company. [Title of Court and Cause.] The plaintiff, as the executor [or administrator] of the estate of A. B., deceased, complains, and alleges: 1. That on the ninth day of August, 1906, the defendant was a corporation, duly organized by [or under] the laws of this state, and was a common carrier of passengers, for hire, by railroad, between M. and N. 2. That on that day said defendant received one A. B. into its cars, for the purpose of conveying him therein as a passenger from M. to A^. for $300 paid to them by said A. B. Complaint — Pleadings. 545 3. That while he was such passenger, at L., a station on the line of the said railroad, by and through the carelessness of the defendant and its servants, a collision occurred by which the cars of said railroad zvere thrown from the track, and the car in which the said A. B. then zvas was precipitated dozvn an embank- ment, and the said A. B. zvas thereby killed [or as the case may be]. 4. That on the tzventy-sez'enth day of August, IQ06, letters of administration upon the estate of the said A. B. were duly issued by the superior court of the county of Sierra to the plaintiff, by which he was appointed administrator of the estate of the said A. B., deceased, and he thereupon was qualified and entered upon his duties of such administration, and he is now the administra- tor of the said estate. 5. That by reason of the premises the plaintiff, as such execu- tor [or administrator], hath sustained damages in the sum of $2,990. No. 924. — Complaint — Fire, Cargo Lost by. [Title of Court and Cause.] The plaintiff complains and alleges: 1. [Allege incorporation as heretofore.] 2. That plaintiff was the owner of [or had an interest in] two hundred barrels of flour, shipped on board the vessel called the A. D., from M. to .V., at tlie time of the insurance and loss here- inafter mentioned. 3. That on the fourth day of January, 1906, at M., the defend- ant, in consideration of $2^, which the plaintiff then paid, exe- cuted to him a policy of insurance upon the said goods, a copy of which is hereto annexed, marked "Exhibit A," and made part of this complaint [or whereby it promises to pay to the plaintiff $2,000 in case of the total loss, by fire or other causes mentioned, of the said goods, before their landing at A^., or in case of partial damage, such loss as the plaintiff might sustain thereby, pro- vided the same should not exceed fifty per centum of the whole value of the goods]. 4. That on the twenty-first day of March, IQ06, at C, while proceeding on the voyage mentioned in the said policy, the said goods were totally destroyed by fire. 5. That the plaintiff's loss thereby was $2,000. 6. That on the first day of April, 1906, he furnished the defend- ant with proof of his loss and interest, and otherwise performed all the conditions of the said policy on his part. New Forms — 33 546 New Book o^ Forms. 7. That the defendant has not paid the said loss, nor any part thereof. [Annex copy of policy, marked "Exhibit A."] No. 925. — Complaint — Furniture, Hire o£, [Title of Court and Cause.] The plaintiff complains, and alleges: First — For a first cause of action : 1. That on the second day of March, ipo6, at M., the plaintiff rented to the defendant, and the defendant hired from the plain- tiff, household furniture, plate, pictures, and books, the property of the plaintiff, to wit [describe the articles], for the space of three years, then next ensuing, to be returned by him to the plain- tiff at the expiration of said time, in good condition, reasonable wear and tear thereof excepted. ' 2. That he promised to pay the plaintiff for the use thereof $300, in equal monthly payments, on the second day of each month thereafter. 3. That no part thereof has been paid. Second — For a second cause of action: 1. [Allege as in preceding form.] 2. The plaintiff further alleges that the value of the property 60 hired by the defendant as above alleged, was $2,pj0. 3. That the defendant, in violation of his said agreement to return the same in good condition, neglected the same, and through his negligence, carelessness, and ill-use, the same became broken, defaced and injured beyond the reasonable wear thereof, and in that condition were returned to the plaintiff, to his dam- age $300. No. Q26. — Complaint — Goods, Price of. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the sixth day of March, ipo6, at P., the defendant, in consideration of his reasonable commissions, agreed with plain- tiff to sell for plaintiff certain goods [fifty barrels of flour]. 2. That on the tenth day of March, 1906, at P., he delivered to defendant fifty barrels of flour, for sale upon commission. 3. That on the twenty-fifth day of March, ipo6 [or on some other day unknown to the plaintiff, before the thirtieth day of March, ipo6], the defendant sold the said merchandise for $3po. Complaint — Pleadings. 547 4. That the commission and expenses of the defendant thereon amounted to $1^. 5. That on the fourth day of April, igo6, the plaintiff de- manded from the defendant the proceeds of the said merchandise. 6. That he has not paid the same, nor any part thereof. No. 927. — Complaint — Guardian — Infant vs. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That he is under the ag-e of twenty-one years. 2. That on the twenty-sezTnents to be made as follows: Fifty (30) per cent cash on estimates, to be made monthly, on or about the first of each and every month, until the completion of said work, and twenty-five (^5) P^^ c^^ *^ ^^^ mortgage six (6) per cent twenty-year bonds of said S. D. F. Company; remaining tzve^ity-fiz'c (2^) per cent to be paid in said above-mentioned first mortgage borids; but the same to be held by S. D. F. Company until the fidl completion of the contract, and to bear no interest until delivered to said J. J., said bonds to be taken by him at ninety-five (pj) cents on the dollar, and in no event to bear interest until delivery thereof. Tha-t afterwards, to wit, on the sixth day of June, ipo6, the parties to the foregoing agreement, by a memorandum attached thereto and subscribed by said parties, agreed that the said S. D. F. Com- pany shoxdd pay the said J. J., for all the zvork theretofore done by him for said company under the foregoing contract of March JO, ipod, according to the terms thereof, and that said J. J. should accept the same. That thereafter, to wit, on the said sixth day of June, ipo6, the said contract of March 30, ipo6, together with the memorandum aforesaid attached thereto, was by the parties thereto filed in the office of the county recorder of said county of San Diego aforesaid. VL Plaintiff alleges, on its information and belief, that the said /. /., under the said contract of March 30, ipo6, commenced the work therein described, and by him agreed to be done on the ninth day of April, ipo6, and thereafter continued in the perform- ance of said work until the tenth day of August, igo6, and up to said last-named day, duly performed all the conditions of said contract on his part, and had done work and furnished materials under said contract and in said constructions of the aggregate value, according to the prices aforesaid, of over forty thousand dollars, and that there remains unpaid on account thereof the sum of forty thousand dollars, no part of which has been paid either in cash or bonds. VII. Full and true copies of said two contracts aforesaid and of the specifications thereto attached and therein referred to, are hereto annexed, contained in the notice of lien marked "Exhibit A." and are in said lien marked "Exhibit A," and they are made a part of this complaint. VIII. Plaintiff alleges, on his information and belief, that on or about the tenth day of August, 1906, the said 7. /. stopped all work, and surrendered said contract and all his rights thereunder to said S. D. F. Company, and the said company accepted the surrender of said contract, and took and accepted possession of said structure, aod accepted the said structure, flumes, ditches. Complaint — Pleadings. 5^5 and tunnels, and has ever since continued in the occupation and use of the same and of said works accepted as aforesaid. On the ninth day of April, ipo6, this plaintiff entered into a written contract with the said /. /., as such contractor aforesaid, by the terms of which, among other things, this plaintiff agreed to sell and deliver to said J. J., at its agency, in the city of San Diego, all the powder, caps, and fuse* needed in all the work to be done by him under his contract or contracts, aforesaid, for said blasting and tunneling for the said S. D. F. Companv, and at the prices, less ten per cent on Giant Powder, as follows, to wit: And said plaintiff further, by the terms of said contract, agreed to furnish such pozvder, caps, and fu^e in such quantities and at such times as said J. J. might require, and to prepay tlie freight thereon, zvhich freight should be charged to his account, and be paid by him upon monthly settlements. And by the terms of said contract the said /. /. agreed to pay the prices hereinbefore stated, and at the times and in the manner following, to wit: At the expiration of ninety days from and after the fifteenth day of April, 1906, for all powder, caps, and fuse used up to that tunc, one-third cash; and deposit with the agent of said piaintiif at the city of San Diego, S. D. F. Company's bonds owned by him, for the remaining unpaid tivo-thirds purchase price due at eighty-five cents on the dollar, and thereafter to pay monthly on the fifteenth day of each and every month during the continuance of the contract, for all further supplies of powder used by him during that month in the same manner and on the same terms, to wit: One-third cash and two-thirds in bonds of said S. D. F. Com- pany, and on completion of said contraet he was to redeem all such bonds a^ may hare been deposited by him as security for pay- ment, by paying to the agent of plaintiff, at the city of San Diego, cash for the full amount of such payments, he to retain all in- terest that might accrue on said bonds so placed. On the same date, to wit, April p, 1906, this plaintiff and said J. J., entered into a supplemental written contract, by the ter)ns of zvhich it was mutually agreed that the freight on Giant and Judson Pozvder should be paid by plaintiff at the lozvest rates pos- sible to be obtained, and should be charged in addition to price of powders named in the foregoing contract between the parties, and the plaintiff to allozv an addition-al ten per cent discount front the prices and discount named in said foregoing contrcurt on Giant Pozvder. but Judson Pozvder to be paid as therein agreed at six and one-lwlf cenis per pound, zvith freight added, and fuse to be •In this ease it was contended by defendant that pcncder, caps and ■fuse were not materials used in the structure described in the complaint; but the supreme court, on appeal, held against the defendant: See 78 Cal. 193. 566 New Book of Forms. cash; that is, fuse to be paid for on the fifteenth of each month. Full and true copies of said two contracts are contained in the notice of lien hereto annexed, marked "Exhibit A," and are in snid lien marked "Exhibit B," and they are made a part of this complaint. X. Under tlie foregoing contract this plaintiff at various dates between said ninth day of April, ipo6, and the tenth day of Au- gust, i(^o6, sold, furnished, and delivered unto said /. /., at his agency in said city of San Diego, to be used, and actually used, in said work of blasting and excavating and tunneling, large quantities of powder, caps, and fuse, to wit, etc. That the foregoing materials were furnished in such quantities and at such times as the said /. /. required, and the plaintiff pre- paid the freight thereon, which amounted to the sum of $418.62 ; that the aggregate value, including freight of said materials at the rates and discount provided for in said contracts, was the sum of $j,22i.^'j, which sum was the fair value of said materials at said place of delivery. The plaintiff duly performed all the conditions of said contracts on its part. That no part of said sum has been paid, and no part of the freight has been prepaid, but the whole of said sum of $/,22i.f,j, is unpaid, and there are no credits or offsets thereto. That /. J., although often requested, never did deposit with the plaintiff, or its agent at San Diego, or at all, any bonds whatso- ever of said vS". D. F. Company, and all said sums of money are due and unpaid. XI. On the Hfth day of September, ipo6, the plaintiff filed for record with the county recorder of the said county of San Diego its claim and notice of lien in writing, containing a true state- ment of its demand hereinbefore set forth for said materials, af- ter deducting all just credits and offsets ; also setting forth in said lien the name of said S. D. F. Company as the owner of the prop- erty hereinbefore described, and the name of said /. /. as the per- son to whom said materials were furnished and by whom plaintiff was employed for that purpose ; also setting forth in said lien the terms, time given, and conditions of plaintiff's contract with said /. /., which, as therein set forth were the same as those hereinbe- fore set forth ; also setting forth in said lien a description of the property to be charged with the lien sufficient for identification, which description therein set forth was the same as that here- inbefore set forth, and which said claim was verified by the oath of L. D. C, the secretary of the plaintiff corporation, in writing, attached to said lien and filed therewith, which said lien and oath were recorded by said County Recorder, in a book kept by him for that purpose, to wit, in book No. 2 of Mechanics' Liens, page 218 et seq., and a copy of which lien (together with the exhibits therein referred to) is hereto annexed and marked "Exhibit A," and made a part of this complaint COMPIvAINT — Pl^E^ADINGS. 567 Xn. That the whole of the property hereinbefore described, inckulinc: the said diverting dam, culverts, flumes, ditches, tun- nels, approaches, reservoirs, and rights of way for said fifty miles, is required for the convenient use and occupation of said con- struction and structure. XIII. Plaintiif alleges, upon its information and belief, that the defendants, /. D., R. R., and S. B., have or claim to have, some estate, right, title, or lien upon said property; but plaintiff alleges that such estate, right, title, and lien are subsequent, and subject to the lien of this plaintiff thereon. XIV. Plaintiff alleges, upon its information and belief, that $1,000 would be a reasonable fee to be allowed to its attorney in this court, and a like sum c«i appeal to the supreme court, in ca^e of appeal. Plaintiff paid eight dollars and fifty cents for recording and fifty cents for verifying said lien, no part of which has been repaid. Wherefore, plaintiff prays judgment against the defendants, the S. D. F. Company and J. J., for said sum of $7,221.57, together with interest thereon from August 10, igo6, and cost of suit, in- cluding: a reasonable counsel fee and tlie amount paid for verify- ing and recording said lien, I hat said judgment for said amount of said costs declares and adjudges the same to be a lien upon all of said propertv in the complaint described and that said lien be foreclosed. TJmt the sheriff of said San Diego county be directed to sell said property, as required by the law and practice of the court, and out of the proceeds, after paying his costs, commission, and expenses of sale, to pay to plaintiff or its attorney the amount of its judgment aforesaid ; that by said judgment it be provided that any of the parties to this suit, or their agents, may bid at said sale and be- come purchasers thereat; that upon production of the sheriff's deed the purchaser be let into possession of the propertv pur- chased ; that the estate, right, title, and lien of all and each of the defendants, and all persons claiming or to claim under them, or either of them, in said property, or any part thereof, be barred or foreclosed. That plaintiff have such other and further relief as may seem proper, together with costs of suit. No. 954. — Complaint — Mechanic's Lien — Short Form. [Title of Court and Cause.] Now come the plaintiffs above named, and, complaining of the above-named defendant, allege : First. That heretofore, to wit, on the first day of January, igo6, J. R. and H. M., the plaintiffs above named, zvere and rz'cr since have been, partners, doing business under the firm name of J.S-D. 568 New Book of For^is. Second. That during all the time in this complaint mentioned, defendant, G. S., was the owner of all that certain land situate in the city and county of San Francisco, State of California, and bounded and described as follows, to wit: [Description.] Third. That on the thirtieth day of November, igo6, plaintiffs 2nd defendant, A., agreed together, as follows: Said defendant uas engaged in erecting a dwelling-house upon all the land above described, and, on said day, he employed plaintiffs to furnish all the stairs in said building, atvd plaintiffs agreed to furnish the same to be used in said building, and the said defendant agreed to pay them therefor the sum of six hundred and forty-five dollars in gold coin. Fourth. That in pursuance of said agreement the said plain- tiffs, on the same day, furnished the said stairs to be used, and they were used, in the construction of said building, according to said agreement. Fifth. That said land was at the time of commencing work on said building owned by the said defendant, A. Sixth. That plaintiffs, under the terms of their agreement with the said defendant, A., agreed to furnish the said stairs, and the said defendant. A., agreed to pay plaintiffs six hundred and forty-five dollars in gold coin, for the same, on the thirtieth day of December, igo6, but the same has not been paid, nor any part thereof, and the same was and now is so due, at the time of the filing of the lien hereinafter mentioned. Seventh. That the said land upon which the said building is constructed, together with twenty feet of said land on each side, find ten feet at the south end of said building, is necessary for the convenient use of said building. Eighth. That on a certain day, to wit, the third day of Janu- ary, 1906, said plaintiffs duly filed and recorded with the county recorder of the city and county of San Francisco, being the coun- ty in which such property is situate, their claim duly verified by the oath of /. R., containing a statement of plaintiffs' demand, after deducting all just credits and offsets, with the name of the owner, and also the name of the person who employed plaintiffs as aforesaid, with a statement of the terms, time given, and con- ditions of the contract, and also a description of the property sought to be charged with the lien sufficient for identification. Ninth. That D. F., The C. S. and L. Society, and S. H., have or claim some interest in said premises; but the same is subse- quent to plaintiffs'. Tenth. That plaintiffs have paid ten dollars as a necessary charge and expense in preparing and recording said lien, viz. : five dollars for recording and five dollars for preparing the same. Eleventh. That the sum of one hundred dollars is a reasonable COMPI^AINT — Pl^EADINGS. 569 sum for attorney's fee in prosecuting this siu't in the superior court. 1. Wherefore, plaintiffs pray for judgment against G. S. A. for the sum of six hundred and forty-Uve dollars, and that the same be adjudged a lien against the lot of land above described. 2. That said premises, building, and appurtenances above de- scribed, to the extent of the interest of said defendant, G. S. A., tlierein, be adjudged and decreed to be sold by the sheriff of said city and county, according to law and the practice of this court, and that the proceeds of such sale be applied to the payment of the costs of these proceedings and sale, and a reasonable attorney's fee of oiie hundred dollars, and said plaintiffs' claim, amounting to said sum of six hundred and forty-iivc dollars, and also for the claim of any other lienholder if any such there be, on said prop- erty, who shall come in and be duly made parties to this action. 3. That plaintiffs be allowed a reasonable sum for attorney's fee by said court, and his costs, in preparing and recording said lien, 4. That plaintiffs, or any other parties to this suit, may become purchasers at such sale. 5. That said plaintiffs may have siich other and further order and relief in the premises as the case may require and as to the court may seem just. No. 955. — Complaint — Money Count Under. [Title of Court and Cause.] The plaintiffs complain, and allege: I. That at the times hereinafter mentioned the plaintiffs were partners, doing business at the city and county of San Francisco, State of California, under the firm name of A. B. & Company, and the defendants were partners, doing business at the said city and county of San Francisco, under the firm name of C. D. & Company. First — For a first cause of action, the plaintiffs allege: 1. That on the sixth day of July, igo6, at S. F., at the request of the defendants, the plaintiffs deposited with the defendants the sum of $1,000, gold coin of the United States, which sum the de- fendants promised to pay the plaintiffs on demand. 2. That on the fifteenth day of July, igo6, at S. F., the plain- tiffs demanded payment of the same from the defendants, but they have not paid the same. Second — And for a second cause of action, the plaintiffs allege : 570 New Book of Forms. 1. That on the ninth day of July, 1906, at 5. P., the defend- ants received $500 from one £. P., to be naid to the plaintiffs. 2. That the defendants have not paid the same. Third — And for a third cause of action, the plaintiffs alleofe: 1. That on the tenth day of July, IQ06, at S. P., the plaintiffs lent to the defendants $600. 2. That the defendants have not paid the samt. No. 956. — Complaint — Money Had and Received. [Title of Court and Cause.] IV. J. H., the plaintiff in the above-entitled action, complain- ing of L. T. J., the defendant in said action, alleges: 1. That on the ninth day of August, ipo6, at the city and county of San Prancisco, State of California, the said defendant received from the said plaintiff, as the agent of said plaintiff, the sum of ofie thousand dollars, to the use of said plaintiff, which he agreed to pay to plaintiff on demand. 2. That thereafter, and before this action was commenced, the said plaintiff demanded payment thereof from the said defendant. 3. That the said defendant has not paid the said sum, nor any part thereof; and the same is due. Wherefore, the said plaintiff prays judgment against the said defendant for the said sura of one thousand dollars, interest and costs of suit. No. 957. — Complaint — Money Paid to Third Party, [Title of Court and Cause.] The plaintiff complains, and alleges : 1. That on the tzvelfth day of January, igo6, at P., at the re- quest of defendant, plaintiff paid to one A. B. $i,§jo. 2. That in consideration thereof, defendant promised to pay the same to plaintiff. 3. That on the fourth day of May, 1006, the plaintiff demand- ed payment of the same from the defendant, but he has not paid the same, nor any part thereof. No. 958. — Complaint — Money Paid — Repayment, [Title of Court and Cause.] The plaintiff complains, and alleges: I. That on or about the eighteenth day of January, ipo6, judgment was rendered against this plaintiff in the superior court Complaint — Pleadings. 571 of the county of Sierra, State of California, in an action wherein the defendant was plaintiff, and this plaintiff was defendant for the sum of $2,^00. 2. That on the trventy-Hfth day of March, i(^o6, at Grass Val- ley, the plaintiff paid to the defendant the sum of $2,^00, in sat- isfaction thereof. 3. That afterward, on the tenth day of AprU, igo6, by the judgment of the supreme court of said State of California, said first-mentioned judgment was reversed ; but that no part of the said sum paid in satisfaction thereof has been repaid to this plain- tiff. No. 959. — Complaint — Mortgage, ChatteL [Title of Court and Cause.] The plaintiff complains, and alleges : I. That on the first day of January, ipo6, at the city of Oak- land, county of Alameda, the said defendant made and executed his certain promissory note in writing, in the words and figures following, to wit: [here copy note], whereby he promised to pay plaintiff the sum of tiuo thousand dollars, with interest at the time and in the mann-er therein specified, in gold coin of the United States, and then and there delivered the said note to the said plaintiff. II. That at the time and place aforesaid, in order to secure the payment of said promis5;ory note, the said defendant executed and delivered to the plaintiff his certain instrument in writing, un- der seal, known as a chattel mortgage, a copy of which is hereto annexed as a part of this complaint, marked "Exhibit A,''' which said chattel mortgage was made in good faith, for the purpose aforesaid, without intent to defraud creditors or purchasers, and was verified, acknowledged, and recorded, pursuant to the stat- ute in such case made and provided. III. That the property mentioned and described in said chattel mortgage and the schedule annexed consisted of [here describe property and where situated]. IV. That no proceedings have been had at law, or otherwise, for the recovery of said sum and interest, or any part thereof, and the same is still wholly owing and unpaid, — Wherefore, the plaintiff prays judgment: 1. That the defendant be foreclosed of all interest, lien, and equity of redemption m said mortgaged property, to wit, the said goods and chattels. 2. That the same be sold, and that the proceeds thereof be applied to the payments of the costs and expenses of this action 572 New Book of Forms. and of counsel fees, not to exceed the sum of $^50, and of the amount due on said note and mortgage, with interest thereon up to the time of pa^m-lent, at the rate of seven per cent per month. 3. Wat the said defendant be adjudged to pay any deficiency that mav remain after applying all said money as aforesaid, and for such other and further Velief as to this court may seem just in the premises. No. 960. — Complaint — Mortgage, Land. [Title of Court and Cause.] The H. S. and L. Society, the plaintiff in the above-entitled action, complaining of A. L. arid M. L., his zvife, the defendants in said action, alleges : That said plaintiff is now, and for six years and upzvard last past has been, a corporation duly created and existing under and by virtue of the laws of the State of California. That on a certain day, to wit, the tenth day of March, 1906, at the city and county of San Francisco, in the State of California, the said defendant, A. L., made his certain promissory note in writing, bearing date on that day, in the words and figures fol- lowing, to wit, [insert copy of note] and then. and there delivered the same to said plaintiff. That the said defendants, A. L. and M. L., his wife, to secure the payment of the said principal sum and the interest thereon, as mentioned in said promissory note, according to the tenor there- of, did, at the same time and place, execute under their hands and seals, and deliver to the said plaintiff, a certain mortgage, bear- ing date on the said tenth of March, 1906, and conditioned for the payment of the sum of five thousand (5,000) dollars, gold coin of the United States, and interest thereon at the rate, and at the time, and in the manner specified in said mortgage and the said promissory note, and according to the conditions thereof; which said mortgage was duly acknowledged and certified, so as to entitle it to be recorded ; and the same was afterwards, to wit on the eleventh day of March, 1906, duly recorded in the office of the county recorder of the city and county of San Francisco, in Liber 416, of Mortgages, page 2^4 ; a copy of which said mort- gage, with the indorsements thereon, is hereunto annexed, marked "Exhibit A," and made a part of this complaint. That ten months of the interest on said principal sum mentioned in said promissory note and in the said mortgage has been paid, and is indorsed on said promissory note; and $5,000, United States gold coin, the principal sum mentioned in said promissory note and mortgage, together with interest thereon at the rate of ten per cent per annum from the tenth day of January, 1906, still CoMPi^AiNT — Pleadings. 573 remains due and unpaid from said defendants, A. L. and M. L., his wife, to said plainiifF. That the plaintiff is now the lawful owner and holder of said promissory note and said mortgage. That the defendant, J. T. J., has, or claims to have, some inter- est or claim upon said premises, or some part thereof, as pur- chaser, mortgagee, judgment creditor, or otherwise, which inter- est or claim is subsequent to and subject to the lien of the plain- tiff's mortgage. Th-at said plaintiff has paid the sum of $i/j taxes imposed on said mortgaged premises in said mortgage particularly described for the fiscal year i8po-pi, which were a prior charge on said land to this mortgage, and that said sum of $175, so paid as afore- said, according to the covenants and stipulatiotvs in said mortgage, bear interest at the rate of two per cent per month. Wherefore, tlie plaintiff prays judgment against the said de- fendant, A. L., for the sum of $5>i75, United States gold coin, with interest at the rate of ten (10) per cent per annum from the tenth day of January, 1905, on $3,000 thereof, and at the rate of two per cent per month on $173 thereof, from the tenth day of December, 1904, and five per cent on the amount found due for attorney's fee provided in said mortgage, and costs of suit; tiiat the usual decree may be made for the sale of said premises, or so much as may be necessary to pay the same, with costs, by the sheriff of the said city and county [or by a commissioner ap- pointed by the court; or, as stipulated], according to law and the practice of this court; that tlie proceeds of said sale may be ap- plied in payment of the amount due to the plaintiff, and that said dcfendanis. and all persons claiming under them, or eitlier of them, subsequent to the execution of said mortgage upon said jirernises, eilher as purchasers, encumbrancers, or otherwise, may be barred and foreclosed of all right, claim, or equity of redemp- tion \u ihe said premises, and every part thereof, and that the said plaintiff may have judgment and execution against the said defendant, A. L., for any deficiency which may remain after ap- plying all the proceeds of the sale of said premises properly ap- plicable to the satisfaction of said judgment. That the plaintiff, or any other parties to the suit, may become purchaser at said sale; that the sheriff [or commissioner] execute a deed to the purcliascr; that the said purchaser be let into the possession of the premises on production of the sheriflf's [or commissioner's] deed therefor ; and that he may have such further relief in the prauises as to tliis court may seem meet and agreeable to equity. 574 New Book of Forms. No. 961. — Complaint — Partition of Land Held in Common with Estate. [Title of Court and Cause.] Plaintiff complaining avers : that on or about the 20th day of June, i8pi, she and the defendant, B. and S. D., deceased, pur- chased from the owner those certain parcels of real property sit- uate in the city and county of San Francisco, in the State of Cal- ifornia, constituting part of blocks numbers one hundred and six- ty-three and one hundred and eighty-six of the Central Park Homestead Association, and bounded as follows: [Description.] That the plaintiff, the defendant B. and said S. D., deceased, each contributed and advanced the equal one-third of the purclxase price of said real property, but it was agreed between them that the property should be conveyed to the defendant B., and that he should hold the legal title thereto in trust one-third for this plain- tiff and one-third for the said S. D., and thereafter the legal title to such property was conveyed to the said B., and has ever since remained vested in him. That thereafter, on or about the 20th day of August, 189 1, the defendant B. made, executed and deliv- ered to the plaintiff a certain instrument in writing by him sub- scribed, wherein and whereby he acknowledged that he held the i-ndivided one-third of both said parcels of real property m trust for the plaintiff, and ever after the date last named and until the death of S. D. hereinafter stated, the plaintiff, the defendant B. and the said S. D. owned and held all the said real property as tenants in common thereof, and the plaintiff and said B. remained tenants in common thereof, each continuing to be the owner and holder of the equal undivided one-third thereof. That on the 3th day of April, IQ04, the said S. D. died testate in said city and county, and by his last will and testament devised the undivided one-half of all his property to his sister, /. D., and the other undivided one-half thereof to his nephews and nieces and his grand nephews and grand nieces, share and share alike, and appointed the defendant /. C. R. executor of his said last will. That by an order of the superior court of the said city and county, duly given, made, and entered on the 13th day of May, 1904, the said /. C. R. was appointed the executor of the last will and testa- ment of the said S. D., deceased, and said R. thereafter, on the same day, qualified as such, and thereafter on the same day there was issued to him out of said court letters testamentary on the es- tate of said S. D., and ever since the said last-named date the de- fendant /. C. R. has been and still is the duly qualified and acting executor of the estate and will of said S. D., deceased. That thereafter and prior to the ist day of October, 1904, the said /. D. died, as plaintiff is informed and believes, unmarried. Complaint — Plivadings. 575 intestate, and childless, and leaving as her sole heirs at law her nieces and nephews, who are the same persons who are the neph- ews and nieces of the said S. D., deceased. That the said S. D. left surviving him, as plaintiff is informed and believes, one nephew named H. W. D., and one niece, the defendant, M. G. S., and, as said plaintiff is informed and believes, the following grand nephews and grand nieces, to wit, the defendants S. C. S., M. B. D. and S. D. That the estate of said S. D., deceased, has never been dis- tributed by any order of court or otherwise, and his will admitted to probate as aforesaid remains subject to contest. That there may be other grand nephews and grand nieces of the decedent, S. D., not hereinbefore named who are not known to this plaintiff, and the plaintiff desires to proceed against all persons having any interest in the estate of S. D. and not hereinbefore named as per- sons unknown. That the plaintiff desires to have partition made of all the real property hereinbefore described, and that the undivided one-third thereof in value be set aside to her in severalty. Wherefore, the plaintiff prays that the real property hereinbe- fore described be partitioned and the undivided one-third thereof in value set aside to her to hold in severalty, that another undi- vided one-third be set aside in like manner to the defendant, G. B., and that the remaining one-third be in like manner set aside to the heirs and devises of S. D., deceased. Plaintiff prays for such other, further, and different relief as may to the court seem meet and equitable, including the alloivance to licr of costs of suit and compensation for Iver counsel herein. NOTE. — California, C. C. P., sec. 753. For the snmmons issned in this particular case see " Summons "j partition of land drawn under pro- v-sions of C. C. P., sec. 756. No. 962. — Complaint — Nuisance, Erecting. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That he is, and at all the times hereinafter mentioned was, the owner and possessed of the house and lot No. 10 L. street, P. 2. That the defendant was also then and there the owner and possessed of certain other premises contiguous to [or in the vicin- ity of] plaintift''s said premises. 3. That the defendant, on or about the twenty-eighth day of February, 1906, erected on his said premises a slaughter-house and cattle-pens, and furnaces and vats for making lard and tallage, and thereafter kept in his said pens, and slaughtered in his said 576 New Book or Forms. slaughter-house, large numbers of cattle and hogs, and made thereat tallow and lard, and thereby and by means of said several acts and things caused noxious and offensive smells, and loud and offensive noises, and tainted and connipted the atmosphere so as to render the dwelling-house and premises of the plaintiff unfit for habitation, and compelled plaintiff to remove from and abandon the same, and thereby also prevent him from renting or otherwise receiving anv income therefrom [if other special damage accrued, state it] , to the damage of the plaintiff $^oo. No. 963. — Complaint — Ordinance, Violation of. [Title of Court and Cause.] The plaintiff complains, and alleges : 1. That on or about the fifth day of October, ipo6, the board of supervisors of the county of Napa, in pursuance of the power in them vested by law, passed a law entitled, "An order, regulation, or ordinance," etc. [giving title of the same], a copy of which is annexed as a part of this complaint. 2. That since the rnssing thereof, to wit, on the fifth day of December, 1906, the defendant [here state fidly wherein the de- fendant has disobeyed the order], contrary to the provisions of the said ordinance above mentioned. 3. That by reason of the premises, the defendant forfeited to the plaintiff the sum of $500. No. 964. — Complaint — Partners vs. [Title of Court and Cause.] The plaintiff complains of the defendants, and alleges : 1. That at the time hereafter mentioned, the defendants were copartners, and doing business as merchants, or traders [or oth- erivise], at the city of P., under the firm name of A. B. & Com- pany. 2. [State cause of action.] No. 965. — Complaint — Partner, Surviving, by. [Title of Court and Cause.] The plaintifT complains, and alleges : I. That at the time hereinafter mentioned, the plaintiff and one C. D. were partners, doing business as merchants, or traders [or otherwise], at tlie city of K., under the firm name of /. D. & Company. 3. That on the twenty-first day of August, IQ06, at K., said C. D. died, leaving the plaintiff the sole survivor of the said firm. Complaint — Pleadings. 577 No. 966. — Complaint — Pledge, Loss oL [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the fourth day of January, ipo6, at P., the plaintiff delivered to the defendant [describe articles\, the property of this plaintiff, of the value of $2,000, by way of pledge to defendant, to secure the sum of $1,750, theretofore loaned by the defendant to the plaintiff, which articles the defendant received for that pur- pose, and agreed with the plaintiff to take good care of the same until they should be redeemed by the plaintiff. 2. That the defendant has failed to fulfill said agreement on his part ; and, on the contrary, so negligently and carelessly kept said articles, that while they were in his possession for the pur- poses aforesaid, they were, through his negligence, lost, to the damage of the plaintiff $2,000. No. 967. — Complaint — Promise, Express — Precedent Debt, [Title of Court and Cause.] The plaintiff complains, and alleges : 1. That on the iifth day of July, igo6, at San Francisco, the defendant was then indebted to the plaintiff in the sum of $770 for [state ivfiat]. In consideration thereof, he then promised to pay to the plaintiff the said sum on the fifth day of August, ipo6. 2. That he has not paid the same, nor any part thereof. No. 968. — Complaint — Third Person, Promise of. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the second day of January, ipo6, one A. B. was, and ever since has been, indebted to the plaintiff' in the sum of $1,250. 2. That on that day the said A. B. was the holder of a bill of exchange [describe it\, and then indorsed and delivered the same to the defendant; in consideration of which the defendant then and there promised A. B. that he would endeavor to collect the same, and that when collected he would apply the proceeds in payment of said indebtedness of said A. B. to the plaintiff. 3. That afterward, on the third day of August, ipoo, the de- fendant collected and received the same. 4. That no pirt thereof has been paid to the plaintiff. New Forms — 37 578 New Book of Forms. No. 969. — Complaint — Promissory Note. [Title of Court and Cause.] The plaintiff in the above-entitled action, complaining of the defendant in said action, alleges: That on the eighth day of June, ipo6, at the city and county of San Francisco, the said defendant, W. B., made his certain promissory note, in writing, bearing date on that day, which said promissory note is in the words and figures following, to wit : $3,000 San Francisco, June 8, ipo6. Sixty days after date, without grace, I promise to pay to J. J., or order, the sum of three thousand (3,000) dollars, payable only in gold coin of the government of the United States, for value re- teived, zvith interest thereon, in like gold coin, at the rate of one per cent per month from date until paid. W. B. And then and there delivered the said promissory note to the said /. /. wh-o afterzvard, on the said eighth day of June, ipo6, duly indorsed, assigned, and delivered said promissory note to the plaintiff herein. That the said plaintiff is now the lawful owner and holder of the said promissory note. That no part of the said promissory note, or of the interest thereon, has been paid. That there is now due and unpaid to the said plaintiff on said promissory note, the sum of three thousand (3,000) dollars, U. S. gold coin, and interest thereon at the rate of one per cent per month from June 8, ipo6. Wherefore, the said plaintiff prays judgment against the said defendant for the sum of three thousand ($3,000) dollars, U. S. gold coin, zvith interest thereon at the rate of one per cent per month from June 8, ipo6, and costs of suit, and that said judg- ment be rendered and made payable in United States gold coin, pursuant to the terms of said promissory note. No. 970, — Complaint — Promissory Note — Holder vs. Indorser and Maker. [Title of Court and Cause.] /. D. and R. R., the plaintiffs in the above-entitled action, com- plaining of /. S., T. J., J. B. and C. B., the defendants in the said action, allege : That at the times hereinafter mentioned, the said plaintiffs were partners, doing business as traders at the city and county of San Francisco, under the firm and style of "J. D. & Co." ; and the Complaint — Pleadings. 579 said defendants, J. S. and T. J., were partners, dning business as merchants at the said city and county, under the firm and style of "J. S. & Co." ; and the said defendants, J. B. and C. B., were part- ners, doing business as merchants at the ^aid city and county, un- der the firm and style of "B. & B." That on the ninth day of August, ipo6, at the said citv and county of San Francisco, the said defendants /. S. and T. J., partners as aforesaid, by the name and style of "J. S. & Co.," made their certain promissory note in writing", payable in gold coin of the United States, bearing date on that day, which said promis- sory note is in the words and figures following, to wit: [Copy of the note.] And then and there delivered the said promissory note to the said defendants, B. & B., partners as aforesaid, who then and there, by their said name and style, indorsed the same, and delivered it so indorsed to the said plaintiffs. That afterwards, when said note became due and payable, to wit, on the ninth day of October, igo6, it was presented to the said defendants, /. D. and R. R., partners as aforesaid, and pay- ment thereof was demanded and refused ; of all which the said de- fendants, /. B. and C. B., partners as aforesaid, had due notice. That said defendants, or either of them, have not paid said note, or any part thereof, and the same remains wholly due and unpaid. That the said plaintiffs are now the owners and holders of said promissory note. \Mierefore, the said plaintiffs pray judgment against the said defendants for the sum of four thousand dollars, with interest thereon from the ninth day of August, igo6, at the rate of one per cent per month, and costs of suit, and that said judgment be made payable in gold coin of the United States. No. 971. — Complaint — Receiver, by. [Title of Court and Cause.] The plaintiff, as receiver of the property of C. D., complains, and alleges : 1. [State cause of action.] 2. That on the fifth day of March, 1906, at the city and coun- ty of San Francisco, and State of California, in an action then pending in the said superior court, wherein C. D. was plaintiff, and E. F. was defendant, upon an application made by the said A. B., and by order duly made by said court [or judge], this plain- tiff was appointed receiver of the property of the said C. D., here- inafter described, to wit: [Describe property so as to show that the cause of action is embraced.] 3. That thereafter, and before the commencement of the pres- ent action, he gave his bond required by the said order, as such SSo New Book of Forms. receiver, approved by the said judge, which bond, with such ap- proval, is on file in the said court, and was so filed prior to the commencement of this action. 4. That on the fifth day of March, IQ06, said receiver duly obtained leave of the said court [the court appointing him] to bring this action. No. 972. — Complaint — Repayment of Deposit. [Title of Court and Cause,] The plaintiff complains, and alleges: 1. That on the twenty-first day of January, igo6, the plaintiflF and the defendant made their contract in writing, subscribed by them, whereby it was mutually agreed that the said defendant should sell to this plaintiff, and the plaintifif should buy from the defendant, certain real estate [describe it], for the sum of $2,^00, to be paid by the plaintiff ; that the defendant should make a good title to the said premises, and deliver a deed thereof on the tzventy-third day of January, ipo6, and that the plaintiff should thereupon pay to the said defendant the said purchase money. 2. That the plaintiff, as a security, as well for the performance of said agreement on his part as to secure a performance thereof on the part of the defendant, then -and there deposited in the hands of the said defendant the sum of $1,250, as part of said pur- chase money, to be to and for the use of the defendant, and to be retained by him on account of the purchase money, if the plain- tiff should complete his purchase and receive the deed ; but to be to and for the use of the plaintiff, and to be returned to him, if the defendant should fail to fulfill his agreement to give a deed at the time and pursuant to the agreement. 3. That he has always been ready and willing to do and per- form everything in the agreement contained on his part, and on tlie said twenty-third day of January, ipo6, was ready and willing, and offered to the defendant to accept the deed of the premises pursuant to the agreement, and to pay to him the balance of the purchase money due therefor. 4. That the defendant did not on the said twenty-third day of January, ipo6, nor at any time since, give him a deed of the premises pursuant to the agreement, but refused to do so. 5. That on the third day of February, ipo6, he demanded of the defendant payment of the sum of $1,250, deposited with him as aforesaid. 6. The defendant has not paid the same, nor any part thereof. CoMPivAiNT — Pleadings. 581 No. 973. — Complaint — Security, not Giving. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the eighth day of June, IQ06, at P., the plaintiff caused to be put up and exposed for sale by public auction, in lots, certain goods and chattels, one of the said lots being a cer- tain carriage, subject to the following terms, to wit: that the high- est bidder should be the purchaser, and that the purchaser should be allowed sci'cn months' credit for the payment of the price, af- ter giving such security as should be approved of by A. B. on the part of the plaintiff ; or that such purchaser should, at his election, pay down the purchase price at the time of the sale, and in that event that five per cent should he deducted by way of discount, from the amount of the purchase money, of all of which said terms the defendant, at the time of the sale, had notice. 2. That at the said sale the defendant was the highest bidder for, and was declared to be the purchaser of, the said carriage, subject to said terms of sale, for $2,^00. 3. That the plaintiff then delivered the carriage to the defend- ant, as such purchaser, and was then, and has since been, always ready and willing to perform the said contract on his part. 4. That the defendant has not, although then requested by the plaintiff, paid any part of the said sum of $2,^00, nor has he given any security for the same, according to the said terms of sale. No. 974. — Complaint — Seller, Purchaser vs. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the sixth day of June, IQ06, at P., the plaintiff and defendant entered into an agreement, in substance as follows : [State the agreem-ent.] 2. That the plaintiff duly performed all the conditions of said contract on his part, and was, on the sixth day of July, ipo6, at P., the day and place of delivery, ready and willing to deliver said property, and tendered the same to the defendant. 3. That defendant refused to accept said goods, or pay for them, pursuant to said agreement, to the damage of the plaintiff $1,230. 582 Ndw Book of Forms. No. 975. — Complaint — Seller of Stock vs. [Title of Court and Cause.] The plaintiff complains, and alleges : 1. That on the thirteenth day of June, igo6, at P., the plaintiff and defendant entered into an agreement, subscribed by them, whereby it was mutually agreed between them that the defendant should sell and deliver to the plaintiff, at such time, within ten days thereafter, as the plaintiff should elect, ten shares of the cap- ital stock of the P. W. C. and O. D. Company, and that plaintiff should pay therefor $2,250. 2. That on the eighteenth, day of June, igo6, the plaintiff ten- dered to said defendant the said sum of $2,250, and otherwise duly performed all the conditions of said agreement on his part, and demanded of the defendant that he deliver said shares of stock to the plaintiff. 3. That the defendant has not delivered the same. No. 976. — Complaint — Services — Fixed Price, [Title of Court and Cause.] The plaintiff complains, and alleges : 1. That between the thirtieth day of January, igo6, and the twenty-eighth day of February, igo6, plaintiff rendered services to the defendant, at his special instance and request, in the capac- ity of clerk [or otherwise.] 2. That for said services the defendant promised to pay plain- tiff a salary at the rate of $130 per month. 3. That the defendant has not paid the said salary [or that no part of said salary has been paid, except, etc.] No. 977. — Complaint — Services — Fixed Price, [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the third day of February, ipo6, at P., he furnished the paint, and painted defendant's house, at defendant's request, 2. That defendant promised to pay him ^75 therefor. 3. That he has not paid the same [or that no part of the same has been paid, except, etc.] COMPI^AliNT — PlICADINGS. 583 No. 978. — Complaint — Services of Minor Son. [Title of Court and Cause.] The plaintiff complains, and alleges : 1. That one A. B. rendered services as a clerk to the defend- ant, at his request, at his store at P., from the first day of Febru- ary, i8p4, to the iirst day of March, igo6. 2. That such services were reasonably worth $^00 [or allege price agreed, as in preceding forms.] 3. That the said A. B. was then, and is now, under twenty- one years of age, and the minor child of this plaintiff. 4. That the defendant has not paid the same, nor any part thereof. No. 979. — Complaint — Sheriff — Attachment, Aid oL [Title of Court and Cause.] The plaintiff complains, and alleges : 1. That he is the sheriff of the county of Napa, duly elected, qualified, and acting as such. 2. That on the nineteenth day of March, igo6, a writ of at- tachment was issued out of this court, and to him directed and delivered, as such sheriff, in an action against A. B., whereby he was directed to attach and keep all the property of sa.id A. B. in his county. 3. That the defendant then had in his possession $500 belong- ing to A. B. [or indebted to the said A. B. in the sum of $300.] 4. That on the twenty-first day of March, 1906, the plaintiff made due service of said writ by delivering to and leaving with said defendant a copy thereof, with a notice showing the prop- erty levied on ; whereupon the plaintiff became entitled to receive from the defendant, and he became answerable to the plaintiff for said $500, which the defendant refuses to pay over to the plain- tiff, or to account to him therefor, to his damage in $300. No. 980. — Complaint — Escape for. [Title of Court and Cause.] The plaintiff complains, and alleges: I. That at the time of issuing the execution and of the escape hereinafter mcntionerl. the (h^fendant was the sheriff of the coun- ty of Humboldt, in this State. 584 New Book of Forms. 2. That on the ttventy-fifth day of January, igo6, In an action in the superior court \state court] brought by this plaintiff against one A. B. for [cause authorising arrest], this plaintiff re- covered judgment, duly given by said court against said A. B., for $2,400. 3. That on the afth day of February, igo6, an execution against the property of said A. B. was duly issued out of the said superior court, on said judgment, and thereafter duly returned wholly unsatisfied. 4. That thereafter, on the tenth day of February, ipo6, an order of arrest was issued by the said court against the person of said A. B., and then directed and delivered to the defendant as said sheriff, whereby he was required to arrest said A. B., and commit him to the jail of the said county of Humboldt, until he should be discharged according to law. 5. That thereafter the defendant, as such sheriff, arrested said A. B. and committed him to jail, pursuant to said execution and order of arrest. 6. That thereupon the plaintiff entered into an undertaking, with good and sufficient sureties, duly executed and approved, conditioned for the payment of the expenses of said A. B. for necessary food, clothing, and bedding [or state a deposit for this purpose. ] 7. That in violation of his duty as such sheriff, he has since, to wit; on the twenty-eighth day of February, ipo6, without the consent or connivance of the plaintiff, permitted said A. B. to escape, to the damage of the plaintiff of $2,400. Wherefore, the plaintiff demands judgment against the defend- ant, according to the statute, for the debt [or for damage, or sum of money] for which such prisoner was committed, to wit: $2,- 400, with interest from, etc. No. 981. — Complaint — Sheriff vs. — False Return, for. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That at the time of issuing the execution hereinafter men- tioned, the defendant was the sheriff of the county of Yuba, in this State. 2. That on the tenth day of December, igo6, judgment was duly given and made in an action in the superior court of the county of Yuba, in favor of the plaintiff, against one G. W., for $1,000. 3. That on the twentieth day of December, jgo6, an execution against the property of the said G. W. was issued upon the said Complaint — Pleadings. 585 judgment directed and delivered to the defendant, as sheriff afore- said. 4. That the defendant afterward, and during the Hfe thereof, levied, under the said execution, on property of the ?aid ff. of the value of $1,000 [or sufficient to satisfy the said judgment, with all the expenses of the execution ; or state particulars of property on zvhich he mi,s^ht have Icz'ied.] 5. That the defendant afterward, in violation of his duty as such sheriff, falsely returned upon the said execution, to the clerk of the county of Yuba, that the said JV. had no property in his county on which he could levy the amount of said judgment, or any part thereof. 6. That by reason of said premises, the plaintiff has been de- prived of the means of obtaining the said moneys directed to be levied as aforesaid, and which are still wholly unpaid, and is like- ly to lose the same. No. 982. — Complaint — Sheriff vs. — Moneys Collected for. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That at the time hereinafter mentioned, the defendant was the sheriff of the county of San Mateo, in this State. 2. That on the twenty-fifth day of November, igo6, at San Mateo, an execution, then duly issued, in form and effect as re- quired by law, against the property of one A. B., and in favor of the plaintiff, upon a judgment for the sum of $350, theretofore duly given in favor of the plaintiff against said A. B., in the su- perior court of the county of San Mateo, in this State, was by the plaintiff directed and delivered to the defendant as such sher- iff. 3. That the defendant thereafter, as siich sheriff, collected and received upon said execution, to the use of the plaintiff, the sum of $350, beside his lawful fees. 4. That although more than sixty days elapsed, after the de- livery of said execution to the defendant, before this action, yet he hns, in violation of his duty as sheriff, failed to pay over to the plaintiff" the amount so collected. No. 983. — Complaint — Sheriff vs. — Neglecting to Return Exe- cution. [Title of Court and Cause.] The plaintiff' complains, and alleges: I. That at the time of the issuing of the execution hereinafter mentioned, the defendant was the sheriff' of tlie county of Mann, in this State. 586 New Book of Forms. 2. That on the eighth day of October, ipo6. in an action in the superior court of the county of Marin, in this State, wherein this plaintiff was plaintiff, and one A. B. was defendant, the plaintiff recovered a judgment duly given by said court against the said A. B. for $200. 3. That on the fifteenth day of October, igo6, an execution against the property of said A. B. was issued on said judgment and directed, and then delivered to the defendant, as sheriff of the county of Marin, of which execution the following is a copy : [Copy the execution and indorsement.] 4. That although more than ten days elapsed after delivery of said execution to the defendant, and before the commencement of this action, yet he has, in violation of his duty as such sher- iff, failed to return the same, to the damage of the plaintiff in $300, No. 984. — Complaint — Sheriff vs. — Not Executing Process. [Title of Court and Cause.] The plaintiff complains, and alleges : 1. That at the time of issuing the execution hereinafter men- tioned, the defendant was the sheriff of the county of Sacramen- to, in this State. 2. That on the twenty-seventh day of September, igo6, at K., judgment was duly given and made in an action in the superior court, in favor of the plaintiff, against one B. P., for $300. 3. That on the tenth day of October, IQ06, an execution against the property of the said E. F. was issued upon the said judgment, and directed and then delivered to the defendant as sheriff aforesaid. 4. That on that day the said E. F. had a large quantity of general merchandise in his store, No. 12'j First street, Sacra- mento, and owned the said store and lot [or, as the case may be], in the said county, out of which the said execution ni!ght have been satisfied, of which the defendant had notice. 5. That he refused and neglected to make a levy under or by virtue of said execution, upon said property, or any part there- of [or as the case may be; and if he levies a part,' specify it], as by said execution he was required to do, to tlie damage of the plaintiff of $2,000, Complaint — PlK.vdings. 587 No. 985. — Complaint — Sheriff vs. — Not Levying. [Title of Court and Cause.] [Allege as in preceding form down to paragraph 4 and insert:] 4. That the defendant neglected to make any levy on the goods and chattels, lands, and tenements of the said G. IV.; and falsely and fraudulently returned upon the said writ to the said court, that the said G. W. had not any goods or chattels, lands, or tenements, in his county. That by reason of the premises, the plaintiff is deprived of his remedy for obtaining payment of his judgment and costs aforesaid, and has wholly lost the same. No. 986. — Complaint — Sheriff's Sale — Purchaser, by. [Title of Court and Cause.] The plaintiff complains, and alleges : 1. That on tlie tenth day of March, 1906, one A. B. was the owner in fee of tlie following described premises [description of premises.] 2. That the said premises were at the time subject to the lien of a judgment recovered by one C. D. against U. t'., in an action in the superior court 01 the county of t'rcsno, in this State, which judgment was docketed in said. county [or state the county], and that the sheriff of said county, by virtue of an execution is- sued thereon, sold tlie same. 3. That at such sale the plaintiff became a purcliaser, and tlie sheriff" executed and delivered to him a certificate of the said sale, and on the twenty-sixth day of March, 1^06, and before this action, executed and delivered to plaintiff' a deed of tlie premises pursuant to the said sale tliereof, and tlie plaintiff' paid the pur- cliase money therefor. 4. That intermediate the sale and delivery of the deed, tlie defendant being in possession [allege act of waste cwui aatna^e, against form of the statute.] No. 987. — Complaint — Sole Trader — Married Woman. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That the defendant is the wife of one A. B. 2. That on the nineteenth day of October, igo6, by a decree of the superior court of the county of Solano, in tliis State, the 583 Mew Book of Forms. defendant was decreed a sole trader ; and at the time of making the note hereafter mentioned, the defendant was, and still is, a sole trader, carrying on business as a milliner, at A. 3. That on the tenth day of November, ipo6, at A., the plain- tiff sold and delivered to the defendant, at her request, goods of the value of S30, which were used by the defendant in her said business, as sole trader. 4. That in consideration thereof, the defendant, as sole trader, made her promissory note, of which the following is a copy: [Copy note.] 5. That she has not paid the same. No. 988. — Complaint — Statute, Penalty Under. [Title of Court and Cause.] The plaintiff complains, and alleges : 1. That on the tenth day of September, ipo6, at R., the de- fendant [here state acts constituting a violation of the statute, either follozving the words of the statute, or setting forth the facts more specifically] against the form of the statute [or sta- tutes, cLs the case may be], in such case made and provided. 2. That thereby the defendant became indebted in the sum of [amount of penalty] to [one for whose use the action is given], whereby an action accrued to the plaintiff according to the pro- visions of [describing the statute in such terms as the case may require.] No. 989. — Complaint — Subscription — Public Object. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. [Aver incorporation.] 2. That the plaintiff, in the month of March, igo6, was erect- ing a building at B., for the purpose of public zvorship. 3. That the defendant and others requested the plaintiff to complete the same, and for the purpose of enabling the plaintiff to do so, they subscribed and agreed to pay to the plaintiff the sum of $^0, in consideration of the premises, and of the like sub- scription and agreement of other persons. 4. That upon the faith of said subscription the plaintiff pro- ceeded with the erection of the building, and expended thereon large sums of money, and incurred large liabilities, and completed said building, and otherwise duly performed all the conditions on its part. Complaint — Pleadings. 58-j 5. That the defendant has not paid said subscription, or any part thereof [except, etc.] No. 990. — Complaint — Surety vs. Principal [Title of Court and Cause.] The plaintiff complains, and alles^es : 1. That on the second day of June, igo6, at P., in considera- tion that the plaintiff would become surety for him, by executing an luidertakine;-. of which a copy is annexed as a part of this com- plaint, marked "Exhibit A," the defendant agreed with the plain- tiff that he would indemnify him, and save him harmless from and against all damages, costs, and charges which he might sus- tain by reason of his becoming surety as aforesaid. 2. That the plaintiff, confiding in such promise of the defend- ant, executed and delivered such undertaking. 3. That the defendant did not indemnify the plaintiff, and save him harmless from such damages, costs and charges ; but, on the contrary, the plaintiff, under a judgment, on the fifth day of August, IQ06, rendered against him by the justice's court, at P., in an action brought against him upon said undertaking, paid, on the sixth day of August, igo6, $jo to A. B., in satisfaction and discharge of said undertaking, and also necessary costs and expenses in said action and on account of said undertaking, to the amount of $330. 4. That notice thereof was given to the defendant, and that the plaintiff duly performed all the conditions of the said agree- ment on his part. 5. That the defendant has not paid the same to the plaintiff, [Annex copy of undertaking, marked "ExJiibit A."] No. 991. — Complaint — Tax, State and County. [Title of Court and Cause.] The plaintiff, by A. B., district attorney of the city and county of San Francisco, complains of /. /., /. D. and R. R.: I. That between the sixth day of January, ipo6, and the sixth day of June, jpo6, A. B., in the city and county of San Fran-- cisco, in the State of California, then and there being county as- sessor of said county, did duly assess and set down upon an as- sessment-roll all the property, real and personal, in said county, subject to taxation; that said assessment-roll was afterward sub- mitted to the board of equalization of said county, and was by 5yo New Book of Forms. said board duly equalized, as provided by law ; that the said /. /. was then and there the owner of, and that there was duly assessed to him, the following described real estate, improvements upon real estate, certain personal property [state kinds], and also cer- tain dogs, to wit: Said real estate, valued and so assessed at $5,ooo Said improvements, valued and so assessed at. . . . ^oo. . . . Said personal property, valued and so assessed at. . 2§o 2. That each of the other persons, defendants herein, have and claim a title to, and an interest in, said real estate, improve- ments on real estate, and personal property, and are liable for, and in duty bound to pay, the taxes herein specified ; that upon said property there has been duly levied for the fiscal year igo6: A state tax of $15 A county tax of 40 Amounting in the zvhole to 55 All of zvhich is due and unpaid, of ivhich amount $40 ?vas duly assessed and levied against the real estate aforesaid, and $1^ against the improvements aforesaid. Wherefore, said plaintiffs pray judgment against said persons, defendants herein, for the sum of $j^, and that said taxes, and all costs subsequent to the assessment of said tax, and all costs and expenses of this suit, be paid in gold and silver coin of the United States, and plaintiffs pray for such other judgment as to justice belongs. No. 992. — Complaint — Telegraph Company vs. [Title of Court and Cause.] The plaintiflf complains, and alleges: 1. That the defendant is a corporation organized and doing business under the laws of this State, and is, and at all times hereinafter mentioned, was engaged in the business of telegraph- ing for hire. 2. That on the eighteenth day of January, igo6, the plaintiff presented to the defendant, at its office in M., the following mes- sage, to wit : "J. D., San Francisco. Buy one hundred tons of wheat. J. R. [the plaintiff.]" Which message defendant received and promised to forward, by telegraph, to said /. D., in San Francisco. That in considera- tion thereof the plaintiff paid the defendant $20. 3. That on account of the negligence of the defendant said message was not transmitted as written by plaintiff, but was sent and delivered to said /. D. so as to read as follows : Complaint — Pleadings. 591 "7. D., San Francisco. Buy five hundred tons of wheat. J. R." 4. Tfuit said J. D., in pursuance of said message so delivered to him, bought five hundred tons of wheat for the account of the plaintiff ; that immediately on learning the error in said telegram, plaintiff notified the defendant of the same, and that through said error four hundred tons of wheat had been bought more than was directed to be bought by the original message written by the plain- tiff, and plaintiff asked instructions from defendant relative to the disposition of said four hundred tons. T/ie defendant refused to take any notice thereof, or give any instructions concerning said zvheat, and the plaintiff thereupon sold the same at San Fran- cisco, on the thirtieth day of January, ipo6, at the highest market rate. 5. That the price paid by said plaintiff for said wheat was $5,000, and plaintiff was compelled to pay the further sum of ^700, commissions on said purchase ; that plaintiff sold said wheat for $4,000, and was compelled to pay ^75 commissions on said saJe. No, 993. — Complaint — Title, Quiet. [Title of Court and Cause.] /. D., the plaintiff in this action, complains of the above-named defendants, and for cause of action alleges: That the plaintiff, above named, is now, and for a long time hitherto has been, the ozvncr, and in possession of that certain piece or parcel of land situate, lying, and being in said county of San Mateo, and bounded and described, as follows, to wit: [De- scription.] And plaintiff further avers that the said defendants claim and assert an interest [or interests] therein adverse to the plaintiff, and that the claims of said defendants are without any right whatever, and that the said defendants have not, nor have either of them, and estate, right, title, or interest whatever, in said land or premises, or any part thereof. Wherefore, plaintiff prays that said defendants may be re- quired to set forth the nature of their several claims, and that all adverse claims of the said defendants, or either of them, may be detemiiiiecl by a decree of this court ; and that by said decree, it be declared and adjudged that said plaintiff is the owner of said premises, and that the defendants, or eithe/ of them, have no estate or interest whatever in or to said land and premises ; and also that the said defendants, and each and every of them, be for- ever debarred from ascerting any claim whatever in or to said land and premises adverse to the plaintiff, and for such other and further relief as to equity shall seem meet. And the plaintiff will ever pray, etc. 592 New Book of Forms. No. 994- — Complaint — Title, Warranty of. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the seventeenth day of May, ipo6, at P., the de- fendant, in consideration of $2,^00 to him paid, granted to the plaintiff, by deed [Jiere insert description], and in his said deed warranted that he had good title in fee simple to the said prop- erty, and would defend the plaintiff in his possession of the same. 2. That the defendant was not, but one A. B. was, then the lawful owner of the said lands, in fee simple. 3. That on the nineteenth day of May, ipo6, the said A. B. lawfully evicted the plaintiff from the same, and still withholds the possession thereof from him. No. 995. — Complaint — Title, Warranty of. [Title of Court and Cause.] The plaintiff complains, and alleges: ■1 I. That on the second day of July, igo6, at P., the defendant ' sold to the plaintiff [state the article sold] for $i,§oo. 2. That by said contract of sale it was understood by the plain- tiff and the defendant to be, and it was, a part of the terms and consideration of said contract of sale, that the defendant had the lawful right and title to so sell, and to transfer the ownership of said goods to the plaintiff. 3. That the defendant had, in fact, no right or title to sell or dispose of said goods. 4. That one B. P. then was the owner of said goods, and after- ward, on the tenth day of July, ipo6, he demanded possession of the same from the plaintiff; and the plaintiff was compelled, and did then deliver them up to B. F., and they were wholly lost to the plaintiff. 5. That by reason of the premises, the plaintiff was misled and injured, to his damage $1,500. ' No. 996. — Complaint — Undertaking on. [Title of Court and Cause.] The plaintiff complains, and alleges: I. That on the tzventy-third day of June, ipnS, an attachment against the property of C. D. was issued out of the superior court Complaint — Pi^eadincs. 593 of said county, in an action commenced by A. B., the plaintiff herein, against said C. D., the defendant herein, to recover [state what.] 2. That afterward, on the twenty-ninth day of June, IQ06. at P., the said C. D. appeared in said action, and appHed for a discharge of said attacliment, and that the defendants herein, B. P. and G. H., thereupon executed and dehvered to this plaintiff a written undertaking, pursuant to law, a copy of which is hereto annexed and made a part of this complaint, marked "Exhibit A.'' 3. That upon delivery of said undertaking the said attach- ment was discharged and the property was released, and that subsequently, on the tenth day of July, ipo6, said plaintiff recov- ered judgment against the said C. D., which was rendered in said action for $500, damages and costs, which judgment was entered and docketed in the office of the clerk of said court, on the twen- tieth day of July, igo6, and that said judgment has not been paid. 4. That on the twenty-fifth day of July, ipo6, this plaintiff de- manded of the defendants herein payment of said judgment, which was by each and all of them refused. 5. That they have not paid the same, nor any part thereof. [Annex copy of undertaking, marked "Exhibit A."] No. 997. — Complaint — Undertaking on. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That heretofore this plaintiff commenced an action in the superior court of San Mateo county, against A. B., to recover possession of specific personal property. 2. That in the course of said action such proceedings of claim and delivery, under and pursuant to the statute, were had, that on the tzventy-fourth day of June, 1906, the defendants made and delivered to the constable serving said writ, for the use of this plaintiff, pursuant to the statute, their written undertaking, of which the following is a copy: [Copy of the undcrtaki)ig.] 3. That the personal property referred to in said undertaking was delivered [or released] to the said A. B., defendant in said action, pursuant to said undertaking, and to a requisition of said A. B., defendant in said action, made pursuant to law, and said undertaking was thereupon delivered to this plaintiff. 4. That such proceedings were afterward had, that, on the sez-enteenth day of July, ipo6, a decision in the said court was rendered against the said A. B., wherein the value of the said New Forms — 38 594 New Book of Forms. property was found to be $2,yj0, whereupon judgment was ren- dered against A. B., the defendant therein, that the plaintiff re- cover possession of said property, or the sum of $2,730, in case a deHvery could not be had. 5. That the defendant has not returned said property, nor othen\'ise paid or satisfied said judgment. 6. [State demand, zvhere that is necessary.'\ 7. That this plaintiff thereafter caused execution to be issued on said judgment against the said defendant, A. B., which exe- cution has been returned wholly unsatisfied. No. 998. — Complaint — Vicious Dog, Injuries by. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the fourteenth day of August, jgo6, at P., the de- fendant was the keeper \or ozvner] of a certain vicious dog, which was accustomed to bite mankind. 2. That the said defendant, well knowing the premises, did wrongfully and injuriously keep and harbor the said vicious dog, and wrongfully and negligently suffered such dog to go at large without being properly guarded or confined. 3. That while so kept as aforesaid, the said dog did bite and greatly wound this plaintiff [state the particulars], whereby this plaintiff became sick, and sore, and lame, and. so continued for the space of six months thence next following, and was obliged to pay, and did expend, $1,000 for medical attendance consequent thereon, and was prevented during all said months of sickness from attending to his lawful affairs, to his damage $2,300. No. 999. — Complaint — Wager, to Recover Back. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the tzventy-second day of January, ipo6, at M., the plaintiff deposited in the hands of the defendant, as stakeholder, $500, which was to abide the event of a wager made between the plaintiff and one A. B., on the result of [here state what, as elec- tion, race, or otherwise.] 2. That such wager was in violation of the statute entitled, "An Act," etc. [title of act], passed January 21, 1903, and the acts amendatory thereof and supplementary thereto. Complaint — Pleadings. 595 3. That no decision has as yet been rendered upon said elec- tion [race or otJicrwise] ; and that the defendant still retains said money as stakeholder. 4. That on the second day of February, IQ06. the plaintiff de- manded the return of said money of the defendant. 5. That the defendant has not returned or paid back the same. No. 1000. — Complaint — Warehouseman Injury to Goods. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the tenth day of January, IQ06, at P.. the defend- ant, in consideration of the sum of $2^0, then and there paid to him by plaintiff, agreed to store and keep safely in his warehouse at P., the following- goods, the property of the plaintiff, of the val- ue of $2, §00. consisting of [here dcsi^^nate goods^, for the term of four weeks from said date, and then safely to deliver said goods to plaintiff at his request, and then and there received said goods for such purpose. 2. That at the time of the delivery of said goods to defendant the plaintiff informed him that it was necessary to the preserva- tion of said goods that they should be handled with care. 3. That the defendant negligently allowed the same to be handled without care, and roughly moved and broken, so that the snme, through the negligence of the defendant and his serv- ants, became entirely ruined, to the damage of tlie plaintiff, $2,- 500. No. I OCX. — Complaint — Water, Escape of. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the fourteenth day of Fehrxiary, ipo6, the plaintiff was in the possession and occupancy of that certain building sit- uate on L street, in the city and county of San Francisco, known as No. 15, and was engaged in carrying on therein a general mer- chandise business, and owned and had stored therein large quan- tities of goods, to wit : groceries of the value of $10,000. 2. That the defendant is, and at all times herein mentioned was, a corporation duly incorporated and existing under the laws of the State of California, and that the business of said corpora- tion has been, and is, to supply the inhabitants of said city aiui county with fresh water, which water was and is supplied through 596 Ne;w Book of Forms. iron pipes heretofore laid by the defendant through the principal streets of said city and county, and that said pipes were and are owned and controlled by the defendant. 3. Thai at all times herein mentioned a water pipe or main was laid on L street, through zvhich water was then flozving in great quantity, and with great velocity, and under great pressure, and that said pipe was then owned and controlled by the defendant, and zvas used by it in conducting and distributing zvater to the inhabitants of said city and county. 4. That on the said last-mentioned day defendant, by its agents and servants, was engaged in repairing said water pipe or main, situate as aforesaid, on L street, while the water was flow- ing through said main, but in so doing did not use proper or any care therein, as it could and should have done, by shutting off the flow of water through said main during the process of making said repairs; but, on the contrary, said defendant, and its agents and servants, were guilty of gross negligence and carelessness in endeavoring to make said repairs while the water continued to flow through said principal main, and thereby a large quantity of water was permitted to escape, and did escape, from said main with great force and velocity, and under great pressure, and that by reason thereof said water ascended to a great height, to wit ; to the height of forty feet and upward, and fell upon the roof of the building occupied by the plaintiff, and descended into the floors below, and flowed over, upon and around goods which this plaintiff then owned and had there stored, and completely de- stroyed and rendered valueless large quantities of the same, which were then of great value ; to wit, of the value of $1,000, to the great injury and damage of this plaintiff, in the sum of $1,000. No. 1002. — Complaint — Wife, Enticing Av^ay. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That A. B. is, and at the time hereinafter mentioned was, the wife of the plaintiff. 2. That on or about the nineteenth day of August, igo6, while the plaintiff was living and cohabitating with and support- ing her, at P., and while they were living together happily as man and wife, the defendant, wrongfully contriving and intend- ing to injure the plaintiif, and to deprive him of her comfort, so- ciety, and assistance, maliciously enticed her away from the plain- tiff's and her then residence in P., to a separate residence in Q., and has ever since there detained and harbored her, against the consent of the plaintiff. Complaint — Pleadings. 597 3. Tliat by reason of the premises the plnintiflf has been, and still is, wrongfully deprived by the defendant of the comfort, society, and aid of his said wife, and has suflfered great distress of body and mind in consequence thereof, to his damage $9,300. No. 1003. — Complaint — Witness vs, — Disobeying Subpoena. [Title of Court and Cause.] The plaintiff complains, and alleges: 1. That on the third day of February, iQod. at P., the plain- tiff caused the defendant to be duly served with a subpoena com- manding him to attend as a witness in the superior court, in and for the county of Kern, in this State, on the fifth day of February, ipo6, there to give testimony on behalf of the plaintiff in an action in said court pending, wherein this plaintiff was the plaintiff, and one C. D. was defendant [or otherwise designate the proceedings.] 2. That at the same time the plaintiff caused $2, the lawful fees of the said witness, to be paid [or tendered] to him. 3. That defendant failed to attend as commanded, whereby the defendant became indebted to the plaintiff in the amount of $300, according to the provisions of the statute [describe the statute.] 4. That by reason of the premises, the defendant forfeited to the plaintiff the sum of $350. [If special damages are claimed, add:] q. And for a second cause of action the plaintiff alleges that because of the said failure of the said defendant to attend said trial as such witness as aforesaid, the plaintiff, when said action was called for trial, was compelled, for want of the testimony of said defendant, with- out whose testimony he could not safely proceed to the trial of said action, to move the said court to continue the said action ; and said court did continue the same, and the plaintiff was com- pelled to pay on said continuance, as costs, $500, which sum he was compelled to pay by reason of the said failure of said defend- ant to attend as such witness aforesaid, to the damage of plain- tiff in the svun of $300. 598 Nkw Book oi< Forms. CONTRIBUTION. No. 1004. — Contribution by Legatee to Devisee Whose De- vise has been Sold to Pay Debts. [Title of Court and Cause.] It appearing that the said A. B., deceased, by his last will de- vised to C. D. all that real estate described as follows: [Descrip- tion.] It also appearing that said real estate is of the present mar- ket value of $6j,ooo. It also appearing that all the personal property belonging to said estate has been sold and the proceeds used to pay the debts of said estate and the expenses of administration. It also appearing that there remains in the hands of B. F., the executor of said will, $2-/, ^6 5.2 5, in gold coin, and of that amount $36^.25 will be consumed in closing said estate. It also appearing that the land above described has been sold by order of this court for the payment of the debts and expenses as aforesaid, and that all the said money now in the hands of said executor is the surplus proceeds of said sale. And it also appearing that G. H. and L. J., are the only residu- ary legatees or devisees under said will, and that the said G. H. and L. J., will take, under said will, all the remaining real estate belonging to said deceased. And it also appearing that said last- mentioned real estate is unencumbered and of the present mar- ket value of $365,000. It is ordered that all the aforesaid $2^,000 remaining on hand be distributed to the said C. D., and that the said G. H. and L. J., each contribute [upon such terms as to payment, etc., as the said C. D., G. H. and L. J. may agree upon], to C. D., the sum of $ip,ooo in gold coin, making $38,000 in all. It is further ordered that upon presentation to this court of the receipt of the said C. D. of said $38,000, that a decree of dis- tribution of all that real estate described as follows [description], be distributed to the said G. H. and L. J., as tenants in common. NOTE.— California, C. C. P., sees. 1562-1564; Arizona, C. C, par. 1801; Idaho, C. C. P., sec. 4196; Montana, C. C. P., sec. 2694; Nevada, Comp. Laws, sec. 29.36; North Dakota, Probate Code, sec. 6446; South. Dakota, Probate Code, sec. 227; Washington, BaUinger's Codes, sec 6280; Wyoming, Eev. Stats., sec. 4802. Controversy — Costs. 599 CON^TT^OYEKRY. No. 1005. — Controversy — Submission of Without Action. [Title of Court and Cause.] It is stipulated between the parties hereto as follows: A. B., the plaintiff, was, on the iirst day of May, igo6, a real estate agent. At the same time C. D., the defendant, owned a tract of land in said county; that both plaintiff and defendant re- side in said county; that on said day if was agreed betzveen plain- tiff and defendant that if plaintiff unthin three months zvould ffnd a purchaser who would pay ten thousand dollars for said land, that defendant, on demand, would pay plaintiff live hundred dol- lars; that on the third day of June, 1906, plaintiff found a pur- chaser, to zvhom defendant, on June 10, 1906, granted said land for ten thousand dollars; that on the tenth day of said month of June plaintiff demanded of defendant five hundred and fifty dol- lars, zvhich defendant refused to pay, and never has paid. It is further stipulated that this controversy shall be, and the same is, hereby submitted for judgment without further testimony. NOTE.— California, C. C. P., sees. 1138-1140; Alaska, Codes, pt. 4, c. 29, sees. 248-250; Idaho, C. C. P., sees. 3945-3961; North Dakota, C. C. P., sees. 6131-6134; Oregon, Codes and Statutes, sees. 41, 193-195, 199, 413; South Dakota, C. C. P., sees, 787, 789: Utah, Rev. Stats., sees. 3218-3220. COSTS. No. ioo6 — Costs, Memorandimi of. [Title of Court and Cause.] DISBURSEMENTS. Sheriff's fees, to serzice of summons ^ j 2^ Clerk's fees, to commencing suit and entering up judgment 11 00 Witness' fees, to wit, J. S., one day 2 00 Verification to complaint 30 ^^^^ ' $N 75 6oo New Book of Forms, State of California, City and County of San Francisco, — ss. /. C. B., being duly sivorn, says: That he is the attorney for the plaintiff in the above-entitled action, and, as such, is better in- formed relative to the above costs and disbursements than the said plaintiff. That, to the best of this affiant's knowledge and belief, the items in the above memorandum contained are correct, and that the said disbursements have been necessarily incurred in the said action. NOTE. — The party recovering judgment, who claims costs, must de- liver to the clerk, and serve upon the adverse party, within five days after the verdict or notice of the decision — or, if the entry of the judgment on the verdict or decision be stayed, then before such entry is made — a memorandum of the items of his costs, verified by the oath of the party, or agent, or by the clerk of his attorney, or by his attor- ney, stating that, to the best of his knowledge and belief, the items are correct, and that the disbursements have been necessarily incurred in the action. A party dissatisfied may, within five days after notice of filing of the bill, move to have the same taxed by the court, or by the judge thereof at chambers: C. C. P., sec. 1033; Alaska, Codes, pt. 4, c. 52, sees. 509-528; Arizona, C. C, pars. 1542-1559; Idaho, C. C. P., sec. 3731; Montana, C. C. P., sec. 1867; Nevada, Comp. Laws, sec. 3581 j Utah, Bev, Stats., sec. 3350; Washington, Ballinger's Codes, sec. 5173. CREDITOR'S CLAIM. No. 1007. — Creditor-'s Claim — Mortgage. [Title of Court and Estate.] The undersigned, a creditor of T. /., deceased, presents his claim against the estate of said deceased, for approval, as follows, to wit: Estate of T. J., Deceased, To /. S., Dr. To principal of promissory note, dated May 5, IQ06, hereto attached $1,000 00 To interest on same, from May 5, ipo6, at two per cent per month, to this date ^o 00 To cash loaned April i, ipoS 300 00 To agreed price of horse sold and delivered April 2g, i8p3 170 00 $T,^00 00 Creditor's Claim. Coi [Copy of Promissory Note Attached.] $1,000. San Francisco, May 5, 7po<5. Thirty days after daie. I promise to pay to J. S., or order, the sum of one thousand dollars, with interest at the rate of tivo per cent per month, for value received. T. J. [If the claim is founded on a recorded mortgage the practice is to describe the rate and mortgage and then attach a copy of them as an exhibit, as follows : The said mortgage was duly ac- knowledged so as to entitle it to be recorded, and it was on the ^d day of May, igo6, duly recorded, in the office of the county recorder of Fresno county, California, in book "A" of Mortgages, at page 137 et scq., a copy of which note and mortgage, with all indorsements thereon, is hereto attached and made a part of this instrument and marked Exhibit "A." See Verification.] NOTE. — In California every claim which is due, when presented to the executor or administrator, must be supported by the affidavit of the claimant, or some one in his behalf, that the amount is justly d e, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant. If the claim be not due when presented, or be contingent, the particulars of such claim must be stated. When the affidavit is made by a person other than the claimant he must set forth the reason why it is not made by the claimant. The executor or administrator may also require satisfactory vouchers in support of the claim: C. C. P., sec. 1491. \\ nen a claim is presented to the executor or administrator, he must ir dorse thereon his allowance or rejection with the day and date thereof. If he allow the claim it must be presented to a judge of the superior court [to whom the proceeding has been assigned] for his approval, who must in the same manner indorse upon it his allowance or rejection. If the executor or administrator, or the judge, refuse or neglect to in- dorse such allowance or rejection for ten days after the claim has been presented to him, such refusal or neglect may, at the opinion of the claimant, be deemed equivalent to a rejection on the tenth day; and if the presentation be made by a notary, the certificate of such notary under seal shall be prima facie evidence of such presentation and the date thereof. If the claim be presented to the excutor or administrator before the expiration of the time limited for the presentation of claims, the same is presented in time, though acted upon by the executor or administrator and by the judge, after the expiration of such time: Id., sec. 1496. Ever>' claim allowed by the executor or administrator, and approved by a judge of the superior court, or a copy thereof, as hereinafter pro- vided, must, within thirty days thereafter, be filed in the court, and be ranked among the acknowledged debts of the estate, to be paid in due course of administration. If the claim be founded on a bond, bill, note or any other instrument, a copy of such instrument must accompany the claim, and the original instrument must be exhibited, if demanded, unless it be lost or destroyed, in which case the claimant must accom- pany his claim by his affidavit, containing a copy or partieular descrip- tion of such instrument, and stating its loss or destruction. If tlie claim, or any part thereof, be secured by a mortgage, or other lien which has been recorded in the office of the recorder of the countv in which the land affected by it lies, it shall be sufficient to describe the mort- gage or lien, and refer to the date, volume, and page of its record. If, 6o2 New Book of Forms. in any casej the claimant has left any original voucher in the hands of the executor or administrator, or suffered the same to be filed in court, he may withdraw the same when a copy thereof has been already, or is then, attached to his claim. A brief description of every claim filed must be entered by the clerk in the register, showing the name of the claimant, the amount and character of the claim, rate of interest, and date of allowance: Cal. C. C. P., sec. 1497; Alaska, Codes, pt. 4, c. 84, sees. 820-829; Arizona, C. C, par. 1746; Idaho, C. C. P., sec. 4140; Mon- tana, C. C. P., sec. 2607; New Mexico, Comp. Laws, sees. 1967, 1998- 2000, 2062; North Dakota, Probate Code, sees. 6399-6418; South Dakota, Probate Code, sees. 167-191; Utah, Bev. Stats., sec. 3854; Wyoming, Eev. Stats., sec. 4752. No. ioo8. — Creditor's Claim — Contingent. [Title of Court and Estate.] The undersigned, a creditor of T. /., deceased, presents his claim against the estate of said deceased, for approval as follows, to wit : On June the first, ipo6, the undersigned and said deceased en- tered into an agreement in writing, as follows: The undersigned conveyed to said deceased the north half of section six, township eight, range twelve east, M. D. B. & M., for eight dollars per acre, paid by deceased at the date of said conveyance. At the same time, and as part of said contract of conveyance, said deceased and the undersigned agreed that if during a period of four years from the date of said deed said tract of land should, with proper cultivation, net deceased a profit of forty dollars an acre, average for said term of four years, then at the expiration of said term deceased agreed to pay the under- signed ten dollars an acre for each acre contained in said tract. A copy of said conveyance and contract is hereto attached and referred to and made a part hereof and marked Exhibit "A." /. S. [Affidavit] : The same as in creditor's claim down to the words "dollars is justly." Then add [to become due according to the contracts in the foregoing claim described, four years from June I, ipo6]. That no payments have been made thereon which are not credited, and there are no offsets to the same to the knowl- edge of said claimant. NOTE. — California, C. C. P., sec 1648; Arizona, C. C, par. 1880; Idaho, C. C. P., sec. 4264; Montana, C. C. P., sec. 2815; Nevada, Comp. Laws, sec. 2986; Utah, Bev. Stats., see. 3874; Washington, Ballinger's Code, sec 6338; Wyoming, Eev. Stats., sec. 4731. No. 1009. — Creditor's Claim by Executor. [Title of Court and Estate.] The undersigned, a creditor of S. D., deceased, and the ex- ecutor of his will, presents his claim against the estate of said de- ceased, for approval, as follows: I Ckkditor's Claim. 603 On January 14, igo2, said deceased signed and delivered to claimant a written appointment constituting him, said D., attor- ney in fact, with power to collect and receive all moneys that then or thereafter became due to him, said D., and to receipt f.odes, pt. 4, c. 86, sec. 864; Arizona, C. C, par. 1872; Idaho, C. C. P., Bee. 4258; Montana, C. C. P., sec. 2796; Nevada, Comp. Laws, see. 2978; North Dakota, Probate Code, sees. 6495-650U; Oregon, Codes and Statutes, sec. 1210; South Dakota, Probate Code, sees. 2S2-29U; Wash- ington, Ballinger's Codes, sec. 6332, No. 1026. — Decree — Account, Settlement and Distribution. [Title of Court and Estate.] R. D., executor of the last will of W. H. L., deceased, having on the sixteenth day of June, igo6, rendered and filed herein a full account and report of his administration of said estate, which account was for a final settlement, and having with said account filed a petition for the final distribution of the estate; And the said account and petition this day coming on regularly to be heard, proof having been made to the satisfaction of the court that the clerk had given notice of the settlement of said account, and the hearing of said petition, in the manner and for the time heretofore ordered and directed by the court ; And it appearing that said account is in all respects true and correct, and that it is supported by proper vouchers ; that the res- idue of money in the hands of the executor, at the time of filing said account was one thousand dollars; that since the rendition of said account there has been received by the said executor tlve siirtt of tire hundred dollars ; that the sum of five hundred dollars has been expended by him as necessary expenses of administra- tion, the vouchers whereof, together with a statement of such ex- penses and disbursements, are now presented and filed, and said statement is now settled and allowed, and the payments are ap- proved by this court; that the estimated expenses of closing the estate will amount to one hundred dollars, leaving a residue of nine hundred dollars; and it appearing that all claims and debts against said decedent, all taxes on said estate, and all debts, ex- penses, and charges of administration have been fully paid and discharged, and that said estate is ready for distribution, and in condition to be closed ; It is further ordered, adjudged, and decreed, that the said final accounts of the said executor be, and the same are, settled, al- lowed, and approved, and that the residue of said estate herein- after particularly described, and any other property not now known or discovered, which may belong to the said estate, or in which the said estate may have any interest, be, and tlie same is hereby, distributed as follows : 6i4 New Book of Forms. All of said property to be distributed to his zvidow, H. L. The following is a particular description of the said residue of said estate referred to in this decree, and of which distribution is now ordered as aforesaid : Eight hundred dollars in gold coin of the United States, cash in the hands of said executor. NOTE. — When any account is rendered for settlement, the court ap- points a day for the settlement thereof; the clerk thereupon gives notice b;- posting in at least three public places in the county, setting forth the name of the estate, the executor or administrator, and the day ap- pointed for the settlement. The court may order such further notice to be given. If the account is a final settlement, and a petition for the final distribution of the estate is filed with said accounts, the notice must state those facts, and the notice must be given by posting or publication, as the court may direct, and for such time as may be or- dered. On the settlement of said account, distribution and partition of the estate to all entitled thereto may be immediately had without further notice or proceedings: Cal. C. C. P., sees. 1633, 1634; Alaska, Codes, pt. 4, c. 86, sec. 880; Arizona, C. C, par. 1862; Idaho, C. C. P., sec. 4254; Montana, C. C. P., sec. 2792; Nevada, Comp. Laws, sec. 2991; North Dakota, Probate Code, sees. 6509-6516; South Dakota, Probate Code, sees. 307-311; Utah, Eev. Stats., sec. 3945; "Wyoming, Eev. Stats., sec 4830. No. 1027. — Decree — Distribution. [Title of Court and Estate.] M. J., the administratrix of the estate of T. J., deceased, hav- ing on the seventeenth of August, 1906, filed in this court her petition, praying for an order finally distributing said estate ; said matter coming on regularly to be heard this nineteenth day of September, ipo6, the hearing of said petitio-n was by the order of this court, didy made and entered, continued until this tzventy- sixth day of September, igo6, at eleven o'clock A. M., and at the said last-mentioned time the said administratrix appearing by her counsel, and the attorney heretofore appointed for the minor lieirs of said deceased, being present in court and representing such minor heirs, this court proceeded to the hearing of said petition ; and it appearing to the satisfaction of this court that the residi;e of said estate, consisting of the property hereinafter particularly described, is now ready for distribution, and that said estate is now in a condition to be closed : That the whole of said estate is common property, it hazing been acquired by said deceased after his marriage to said M. J. That the said T. /. died intestate, in the city and county of San Francisco, on the seventeenth day of May, 1906, leaving him surviving said M. J., his zvidow, and J. J., W. J., a minor, C. J., a minor, and B. J., a minor, the children of said deceased, and his only descendants. That since the rendition of her said final account the sum of fifty dollars has come into the hands of said administratrix, and the sum of hvcnty dollars and sixty-two cents has been expended by said administratrix as necessary expenses of administration, the vouchers whereof, together with a statement of such receipts and disbursements, are now presented and filed, and the payments are approved by this court; and that the estimated expenses of closing said estate will amount to the sum of twenty-five dollars. That the said M. J., tlu surziving widow of said deceased, is entitled to the one-half the residue of said estate, and the said descendants of said deceased are entitled to the other half of the said residue of the estate. Now, on this, the said twenty-sixth day of September, iQod, on motion of R. H., Esq., counsel for said administratrix, the said attorney for the mirwr heirs of said deceased consenting; It is hereby ordered, adjudged and decreed that the residue of said estate of T. J., deceased, hereinafter particularly described, and now remaining in the hands of said administratrix, and any other property not now known or discovered, which may belong to the said estate, or in which the said estate may have any interest, be, and the same is hereby distributed as follows, to wit : The one-haif of said residue to the said M. J., the widow of said deceased, and the other half of said residue to said J. J., W. J., C. J., and B. J., the descendants of said deceased; tluit is to say, thai the sum of $662.^2 be paid to said M. J., and the sum of $165.62 be paid to said J. J., and tlte like sum to the legally appointed guardian of each of said minors, W. J., C. J., and B. J. ; and the one equal undizided half part of the real estate is hereby distributed to said M. J., and the other equal undizided half part of the real estate to the said descendants of said deceased; to the said J. J., one undifided one-eighth; to the said W. J., one undivided one-eighth; to the said C. J., one undizided one-eighth; and to the said B. J., one undivided one-eighth of the whole of the real estate hereinafter mentioned and described. The following is a particular description of the said residue of said estate referred to in this decree, and of which distribution is ordered, adjudged, and decreed, as aforesaid, to wit: PersoncU Property; Cash $1,3^5 00 Real Property: [Description.] NOTE. — Upon the final settlement of the accounts, or at any sabse- qnent time, upon the application of any interested persons, the court proceeds to distribute the residue of the estate among the persons en- titled thereto [and if the decedent left a surviving child, and the issna of other childien, and any of them, before the close of the administra- 6i6 New Book of Forms. tion, have died while tinder age and not having been married, all the estate which such deceased child was entitled to by inheritance must, without administration, be distributed to the other heirs at law.] A statement of any receipts and disbursements, since the rendition of his fir.al accounts, must be reported and filed at the time of making such distribution, and a settlement thereof, together with an estimate of the expenses of closing the estate, must be made by the court and in- cluded in the order or decree; or the judge may order notice of settle- ment of such supplemental account, and refer the same as iu other eases: Cal. G. C. P., sec. 1665; Alaska, Codes, pt, 4, c. 87, sec. 880; (Arizona, C. C, par. 1895; Idaho, C. C. P., sec. 4275; Montana, C. C. P., iSec. 2843; Nevada, Comp. Laws, sec. 3001; New Mexico, Comp. Laws, sees. 2027, 2028; North Dakota, Probate Code, sees. G509-6529; South Dakota, Probate Codes, sees. 307-331; Utah, Rev. Stats., see. 3953; Wash- ington, Ballinger's Codes, sec. 6355. No. 1028. — Decree — Distribution to Foreign Executor. [Title of Court and Cause.] [The same as in decree settling final account and for distri- bution, to the clause stating tlie balance, and then proceed as follows :] That the will of said deceased has been duly admitted to pro- bate in the district court of the county of Washo, state of Nevada; that said state was the place of residence of said deceased at the time of his death ; that it is necessary in order that said estate may be distributed according to said will, that the following described property be delivered to the executor of said A. B. C, deceased, in the state of Nevada; and it is therefore ordered that the execu- tor of the estate in the state of California, to wit, H. B. C, herein appointed, do forthwith deliver to L. M. A., the executor of said deceased, in the state of Nevada, appointed by the said court in the state of Nevada, the following portion of said estate, to wit: [Description.] NOTE.— California, C. C. P., sec. 1667; Alaska, Codes, pt. 4, c. 87, Bee. 880; Arizona, C. C. P., par. 1898; Idaho, C. C. P., sec. 4277; Mon- tana, C. C. P., sec. 2845; New Mexico, Comp. Laws, sees. 1946-2020; North Dakota, Probate Code, sec. 6524: South Dakota, Probate Court, sec 253j Utah, Rev. Stats., sees. 3962-3969. No. 1029. — Decree — Distribution on Settlement. [Title of Court and Estate.] M. J., the administratrix of the estate of T. J., deceased, having on the seventeenth day of August, igo6, filed in this court her petition, setting forth, among other matters, that her accounts have been finally settled and said estate is in a condition to be dosed; and that a portion of said estate remains to be divided DiiCR£:E. 617 among the heirs of said deceased; that said matter coming on regularly to be heard this nineteenth day of September, 1^06, the hearing of said petition was, by the order of this court, duly made and entered, continued until this twenty-sixth day of September, jgo6, a-t eleven o'clock A. M. ; and at the said last-mentioned time', the said administratrix appearing by her counsel, and F. J. F. Esq., the attorney heretofore appointed for the minor heirs of said deceased, being present in court and representing such minor heirs, this court proceeded to the hearing of said petition ; and it appearing to the satisfaction of this court that the residue of said estate, consisting of the property hereinafter particularly de- scribed, is now ready for distribution, and that said estate is now in a condition to be closed : That the whole of said estate is common property, it hazing been acquired by said deceased after his marri-age to said M. J. The following is a particular description of the said residue of said estate referred to in this decree, and of which distribution is ordered, adjudged, and decreed, as aforesaid, to wit: Personal Property: Cash $i>3^5 00 Real Property: [Description.] NOTE. — In the order or decree of distribntion, the court names the persons and the proportions or parts to which each is entitled, and such persons may recover their shares from the executor or administra- tor, or any person having the same in possession. Such order or decree is conclusive as to the rights of heirs, legatees, or devisees, subject only to he reversed, set aside, or modified on appeal: Cal. C. C. P.. sec. 1666; Alaska, Codes, pt. 4, c. 88, sees. 864, 880; Arizona, C. C, par. 1897; Idaho, C. C. P., sec. 4276: Montana, C. C. P., sec. 2844; Nevada, Comp. Laws, sec. 3002; New Mexico, Comp. Laws, sees. 2027. 2028; North Dakota. Probate Code. sees. 6504-6516; South Dakota, Probate Code Bees. .307-.3;?l; Utah, Rev. Stats., sec. 3945; Washington, Ballin-er's Codes, sec 6356; Wyoming, Rev. Stats., sec, 4831. " No. 1030.— Decree — Exempt Property Set Apart— Court's Motion. [Title of Court and Estate.] It is ordered that all the property described in the inventory, filed herein, exempt from execution, be and the same is, bv this order, set apart for the use of M. J., widow of said H. /., de- ceased, including the homestead, if any there be selected, desio-- nated, and recorded, provided said homestead was selected from the common property belonging to the said deceased and his said wndow, or from the separate property of the persons selectino- or joining in tlie selection of the same. 6i8 New Book of Forms. NOTE. — At any time before the estate is closed [after inventory re- turned], the court may, on its own motion or on petition, set apart for the use of the surviving husband or wife, or, in case of his or her death, to the minor children of the decedent, all the property exempt from execution, including the homestead selected, designated and re- corded; provided such homestead was selected from the common prop- erty, or from the separate property of the persons selecting or joining in the selection of the same. If none has been selected, designated, and recorded, or, in case the homestead was selected by the survivor out of the separate property of the decedent, the decedent not having joined therein, the court must select, designate, and set apart, and cause to be recorded, a homestead for the use of the surviving husband or wife and the minor children; or, if there be no surviving husband or wife, then for the use of the minor children, out of the common property, or if there be no common property, then out of the real estate belonging to the de- cedent: Cal. C. C. P., see. 1465. Under these provisions no evidence what- ever is necessary preceding the order. A general order "that all prop- erty exempt from execution be set aside as provided in section 1465 of the Code of Civil Procedure" is all that is necessary: Id., sec. 1704. Such order carries the homestead and all other exempt property. When the order is made the question as to what property is exempt must be determined when the question of exemption is in issue in the same or Bome other proceeding. As to the second paragraph: If no homestead has been selected, then the court's order and selection carves one out; but if, notwithstanding the order, one has been selected, and not aban- doned, the court's order gives none. It serves only to demonstrate that the court was mistaken. A new homestead cannot be acquired until the old one [if any] is abandoned: Alaska, Codes, pt. 4, c. 83, sees. 815-819; Arizona, C. C, par. 1726; Idaho, C. C. P., sec. 4120; Montana, C. C. P., eec. 2581; Nevada Comp. Laws, see. 2886; New Mexico, Comp. Laws, sec. 2041; North Dakota, Probate Code, sees. 6389-6394; Oregon, Codes and Statutes, sec. 1154; South Dakota, Probate Code, sees. 153-161; Washing- ton, Ballinger's Codes, sec 6220; Wyoming, Eev. Stats., sees. 4736, 4737. No. 1031. — Decree — Homestead Set Apart [Title of Court and Estate.] M. J., the administratrix of the estate of T. J., deceased, hav- ing, on the. sixth day of July, ipo6, made application to the judge of this court, by petition, for an order setting apart, for the use of the family of said deceased, the homestead in said petition jind hereinafter particularly described, together with the dwell- ing-house thereon and its appurtenances ; [or, if the order is made bv the court without petition, or upon verbal application in open court, then say] it is ordered that all that certain lot, [describing it] be and the same is, etc., set apart, etc. And all and singular the law and the evidence being by the court understood and considered, it is ordered, adjudged, and decreed, that all that certain lot, piece, or parcel of land, de- scribed in said petition as situate in the city and countv of San J^rancisco, state of California, and described as follows, to wit: [Description.] DccRSE. 619 Together with the dwelling-house thereon and its appurtenances, be, and the same is hereby, set apart for the use of the family of said T. J., deceased [or to said M. }.]; and that the same shall not be subject to administration ; And it is further ordered that a certified copy of this decree be recorded in the office of the county recorder of said city and county of San Francisco. NOTE. — California, C. C. P., sec. 1465; Arizona, C. C, par. 172G; Idaho, C. C. i'., sec. 4120; Montana, C. C. P., see. 2o81; Nevada, Coinp, Laws, sec. 2886; New Mexico, Comp. Laws, sees. 1747, 1749, 2041; North Dakota, Probate Code, sees. 6389-6394; South Dakota, Probate Code, sees. 153-161; Washington, Ballinger's Codes, sec. 6220; Wyoming, Eev. btats^ sees. 4736, 4737. No. 1032. — Decree — Discharge, FinaL [Title of Court and Estate.] It appearing that said estate has been fully administered, and it being shown by the administratrix thereof, by the production of satisfactory vouchers, that said administratrix has paid all sums of money due from her, and delivered up under the order of the court all the property of the estate to the parties entitled, and performed all acts lawfully required of her; It is ordered, adjudged and decreed, that said administratrix and her sureties be, and they are hereby, released and discharged from all liability to be hereinafter incurred ;* that the said estate is fully distributed, and the trust settled and closed. NOTE. — When the estate has been fully administered, and it is shown by the executor or administrator, by the production of satisfac- tory vouchers, that he has paid all sums of money due from him, and de- livered up, under the order of the court, all the property of the estate to the parties entitled, and performed all the acts lawfully required of him, the court must make a judgment or decree discharging him from all liability to be incurred thereafter: Cal. C. C. P., sec. 1697; Arizona, C. C, par. 1923; Idaho, C. C. P., sec. 4299; Montana, C. C. P., sec. 2886; Nevada, Comp. Laws, sec. 3024; North Dakota, Probate Code, sees. 6509, 6524; Oregon, Codes and Stats., sec. 1202; South Dakota. Probate Code, sec. 330; Utah, Rev. Stats., sec. 2965; Washington, Ballinger's Codes sec. 6376; Wyoming, Rev. Stats., sec. 4833. ' •The profession will take notice that the statute discharging an offi- cer from a liability to be incurred thereafter is in the nnturo of an "in- dulgence" for a wrong to be committed. A singular provision is found in section 12% of the old California street assessment law, enacting that "the city council may in its discretion, but not otlxerwise, order an as- sessmejit'"; Stata. 1889, p. 169. 620 New Book of Forms. No. 1033. — Decree — Foreclosure. [Title of Court and Cause.] This cause came on regularly to be heard in open court on this first day of July, ipo6, J. H. S. appearing for plaintiff, and the defendant not appearing. The court having heard all the evidence and proofs produced herein, and duly considered the same, and being fully advised in the premises, and it appearing therefrom to the satisfaction of the court : First. That G. B., the above-name defendant, has been duly and regularly summoned to answer unto the plaintiff's complaint herein, and has made default in that behalf, and that the default of each defendant for not appearing and answering unto plaintiff's complaint has been duly and regularly entered herein; Second. That on the third day of May, igo6, the plaintiff here- in caused to be filed and recorded in the office of the county re- corder of the city and county of San Francisco, a notice of the pendency of this suit, containing the names of the parties thereto, the object thereof, and also a true and correct description of the lands and premises affected thereby, to wit, the lands and prem- ises hereinafter described ; Third. That there is now due and owing to the plaintiff, S. D., from the defendant G. B., upon the promissory note, and for money expended under the terms of said mortgage, set forth and described in plaintiff's complaint, the sum of ten thousand dollars, ?nd forty cents, gold coin of the United States, and that the de- fendant, G. B., is personally liable for the whole amount thereof. That there is also due plaintiff from defendant, G. B., two hun- dred dollars and sixty cents, costs, percentage and necessary dis- bursements ; Fourth. That the said sums of ten thousand and forty-one- hundredth dollars and tzvo hundred and sixty one-hundredth dol- lars, making in all ten thousand tivo hundred and one dollars, in gold coin, as aforesaid, is a valid lien upon the lands and premises in plaintiff's complaint, and hereinafter set forth and described, and is secured by the mortgage mentioned in said complaint; Fifth. That each and all the terms and conditions of said mortgage have been broken by said defendant, G. B., and that plaintiff is entitled to have said mortgage enforced and foreclosed, and the lands and premises hereinafter set forth and described, sold in the manner prescribed by law, and the proceeds arising from such sale applied to and upon the payment of said sum of money so due as aforesaid ; Sixth. That each and all of the allegations and averments in plaintiff's complaint contained are true and correct. DiCCREe, 621 Now, tlierefore, on motion of /. H. S., counsel for plaintiff, It is adjudged and decreed, that all and singular the mortgaged premises mentioned in the said complaint and hereinafter de- scribed, or so much thereof as may be sufficient to raise the amount due to the plaintiff for the p^-incipal and interest, and costs of this suit, and expenses of sale, and which may be sold separately without material injury to the parties interested, be sold at public auction by the sheriff of the city and county of San I'rancisco [or by 5. C. M., a commissioner hereby appointed to make said sale], in the manner prescribed by law, and according to the course and practice of this court, and that the said sherifY, after the time allowed by law for redemption has expired, exe- cuted a deed to the purchaser or purchasers of the mortgaged premises on the said sale. That the said sheriff [or commissioner], out of the proceeds of said sale, retain his fees, disbursements and commissions on said sale, and pay to the plaintiff', or his attorney, out of said proceeds, the sum of two hundred and one dollars and sixty cents, costs of this suit. Also pay to the plaintiff the further sum of ten thou- sand dollars and forty cents, the amount so found due as afore- s-\u\ together with interest thereon at the rate of seven per cent. per annum, from the date of this decree, all in gold coin of the United States, or so much thereof as the said proceeds of sale will pay of the same. That the defendant, G. B., and all persons claiming, or to claim, from or under him, and all persons having liens subsequent to said mortgage by judgment or decree upon the land described in said mortgage, and his personal representatives, and all per- sons having any lien or claim by or under such subsequent judg- ment or decree, and their heirs, or personal representatives, and all persons claiming to have acquired any estate or interest in said premises subsequent to the filing of said notice of the pen- dency of this action with the recorder, as aforesaid, be forever barred and foreclosed of and from all equity of redemption and claim of, in and to said mortgaged premises, and every part and parcel thereof, from and after the delivery of said sheriff's [or commissioner's] deed. And it is further adjudged and decreed, that the purchaser or purchasers of such mortgaged premises at such sale be let into possession thereof, and that any of the parties to this action who may be in possession of said premises, or any part thereof, and any person who, since the commencement of this action, has come into possession under them, or either of them, deliver possession thereof to such purchaser or purchasers, on production of the sheriff's [or oomniissioner's] deed for such premises, or any part thereof. 622 New Book of Forms. And it is further adjudg-ed and decreed, that if the moneys arising from the said sale shall be insufficient to pay the amount sc found due to the plaintifif, as above stated, with interest and costs, and expenses of sale, as aforesaid, the sheriff [or commis- sioner] specify the amount of such deficiency and balance due to the plaintiff in his return of said sale, and that on the coming in and filing of said return, the clerk of this court docket a judg- ment for such balance against the defendant, G. B., and that the defendant, G. B., pay to the said plaintiff the amount of such de- ficiency and judg-ment, with interest thereon at the rate of seven per cent per annum from the date of said last-mentioned return and judgment, and that the plaintiff have execution therefor. The lands and premises directed to be sold by this decree are situate, lying, and being in the city and county of San Francisco, state of California, and bounded and particularly described as fol- lows, to wit: [Description.] Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertain- ing. NOTE.— California, C. C. P., sees. 726-729; Alaska, Codes, pt. 4, c. 85, sees. 851-855; Arizona, C. C, par. 1432; Idaho, C. C. P., sees. 3331- 3334; Montana, C. C. P., sees. 1290-1293; Nevada, Comp. Laws, sees. 3343-3349; North Dakota, C. C, sees. 5865-8881; Oregon, Codes and Stats., sees. 423-426; South Dakota, C. C, sees. 655-674; Utah, Rev. Stats., sees. 3498-3505; Washington, Ballinger's Codes, sees. 5885-5888. No. 1034. — Decree Establishing Heirship of Testate. [Title of Court and Cause.] [The same as in No. 1035, down to and including the words, "A. B. L. aforesaid" ; then proceed :] That said deceased left a will which has been admitted to pro- bate herein, and that by the terms of said will the whole of the said estate is devised and bequeathed as follows, to wit, a specific money legacy of $p,ooo is bequeathed to A. F. and personal prop- erty described as follows [description], is bequeathed to C. D. and the following described real estate is devised to B. D., to wit : [Description.] And all the residue of said estate is disposed of as follows : The entire remainder thereof to go to 0. F., R. C., and T. M., in equal portions, and upon the distribution of said estate it shall be so awarded. NOTE. — California, C. C. P., sees. 1664-1705; Montana, C. C. P., sec 2840; Utah, Be v. Stats., sec. 3980; Wyoming, lie v. Stats., sec. 4835. DecrEU. 623 No. 1035. — Decree Establishing Heirship of Deceased In- testate. [Title of Court and Cause.] The above-entitled matter coming on regularly to be heard this 3d day of June, IQ06, and A. B., C. D., Li. f., and G. H., having appeared by their attorney, and L. J., K. L., and M. N., having failed to appear, and their faults having been entered as ordered by tliis court, and the entire matter relating to the rights of all the persons hereinabove mentioned having been presented to the court and submitted for judgment upon the merits: It is adjudged and decreed as follows, that — is to say, the A. B. L. aforesaid died intestate on the j(i day of June, 1^0^, leaving surviving as his only heirs at \a.w the persons whose names and relationship to said deceased are as follows, to wit: [Names and residences.] And that upon the death of said A. B. L. the estate of said deceased descended to his said heirs at law, and is now vested in them, subject to administration, in the following pro- portions, to wit : The said A. B., C. D., B. F., and G. H. are the owners of an undivided one-luUf; tlie said estate, and each of said persons is entitled to distribution of said estate according to their respective rights and interests herein set forth, and G. J. and K. L. and M. N. are entitled to the remaining one-half of said estate, ^ and said A. B., C. D., E. F., G. H., I. J., K. L., and M. N. are entitled to the aforesaid respective portions, and that in case the estate is not sufficient to satisfy all the said bequests, and devises the order of priority shall be as follows, to wit, each of said heirs shall take and inherit his proportion of the remainder, subject to distribution in the proportions herein aforesaid adjudged. NOTE.— California, C. C. P., sees. 1664, 1705; Montana, C. C. P., sec. 2840; Utah, Eevised Stats., sec. 3980; Wyoming, Eev. Stats., sec. 4835. No. 1036. — Decree of Partition. [Title of Court and Cause.] This matter having been heard and submitted to the court for judgment, and it appearing to the court that all things directed by law to be done prior to this order of confirmation : It is or- dered, adjudged and decreed that said partition so made bv said commissioner be confirmed, and the same is hereby confirmed be- tween said parties, and that in accordance therewith there be vested in A. B. C, in severalty, in lieu of his undivided share of said estate, the property described as follows, to wit: [Descrip- tion.] [Proceed with others in same manner.] The property to be so partitioned is described as follows, to wit : [Description.] 624 New Book op Forms. NOTE.— California, C. C. P., sec. 1684; Alaska, Codes, pt. 4, c. 43, sees. 397-443; Arizona, C. C, par. 1901; Idaho. C. C. P., so. 4291; xvlontana, C. C. P., sec. 2869; Nevada, Comp. Laws, sec. 3017; New Mexico, Comp. Laws, sees. 3179-3186; North Dakota, Probate Code, sees. 6517-6523; South Dakota, Probate Code, sees. 312-323; Utah, Rev. Stats., sec. 3959; "Washington, Ballinger's Codes, see. 6368; Wyoming, Eev. Stats., see. 4849. No. 1037. — Decree — Sole Trader. [Title of Court and Cause.] The application of A. J., wife of T. J., coming on regularly to be heard this third day of November, ipo6, and proof having been first made to the satisfaction of the court that notice in due form and substance of petitioner's intention to make this applica- tion had been duly published in the D. B., a newspaper published and circulated in the city and county of San Francisco, for four successive weeks, and no creditor of said petiticnier' s husband hav- ing aied any written opposition to her application or appeared to oppose tlie same; The court proceeded to hear the allegations of said applicant's petition, duly filed and verified ; and said applicant appearing in person in open court, and having been duly examined by said court under oath, as required by law, and after hearing said ap- plicant's proofs, it duly appearing to the satisfaction of the court that a proper case exists for granting the order, and that said ap- plicant had been a bona Me resident of said county for six months and upward next preceding her application herein, thereupon said applicant did make and file with the clerk of this court the oath required by law, and the court now here finds the following facts from the proofs, and in accordance therewith : 1. That the application is made in good faith, to enable said applicant to support herself and her five children, dependent upon her, viz. : A. J., aged fourteen years ; W. J., aged twelve years ; F. J., aged ten years; A. J., aged eight years; and B. J., aged five years. 2. That the reason of insuflRcient support from her said hus- band is, he is mit of health and unable to worlz at his trade a major portion of the time. 3. That applicant lias no legal grounds for divorce. 4. That the money to be invested in said business is obtained and loaned from a friend of petitioner. Now, therefore, by virtue of the law and the premises, it is or- dered, adjudged and decreed, that she, the said A. J., be, and is hereby authorized and empowered to carry on in her own name, and on her own account as a sole trader, the business specified in said notice and petition, as follows, to wit: That of buying and selling goods, zvares, and merchandise, and keeping a general z^ariety store in said city and county of San Francisco. NOTE. — California, C. C. P., sees. 1817-1820; Idaho, C. C. P., sec 3892; Montana, C. C^ sec. 2294; Nevada, Como. Laws, sec. 546. D£;faui.t — Demand 625 DEFAULT. No. 1038. — Default, Entry of. [Title of Court and Cause.] In this action the defendant, R. B. R. and P. G. L., having been regularly served with process, and having failed to appear and answer the plaintiff's complaint on file herein, and the time allowed by law for answering having expired, the default of said defendants, R. E. R. and P. G. L. in the premises is hereby duly entered accordinsf to law. 'to NOTE. — California, C. C. P., sec. 585. On amended complaint: Id., Bcca. 432, 872. Forcible entry: Id., sec. 1169. DEMAND. No. 1039.— Demand — Surrender of Premises. To 7. /., Esq. My Dear Sir; I hereby demand that you forthwith surrender to me the southwest quarter of the southwest quarter of section No. 26, township No. 12 south, of range 22 east, Mount Diablo base and meridian, coutUy of Tulare, state of California. (Dated.) Respectfully yours, J. R. S. NOTE. — A copy of the notice should be served, and the original pre- served as evidence, because it has been the experience of the writer of this note that defendants in forcible entry cases seldom admit a fact if there is the slightest pretext for the introduction of conflicting evi- dence. It would be advisable, and in some instances less dangerous to the notice server's person, to have a witness, who should, if convenient, be a friend, present when demand is made. It is not necessary, how- ever, to reduce the demand to writing. It may, in cases of danger, be shouted at the intruder through a hole in a fence, or crack in a wall, or from the roof of a house, or top branches of a tree. The principal object is to make a demand, and the law does not require special for- mality in doing so. Even the words "My Dear Sir," and "Respect- fully yours" may be omitted. Thoy may, however, in extreme c.-ises, serve a good purpose as conciliatory expressions. If practicable, the intruder might be requested to admit service of demand. If so, write on the back of the written demnnd: "Service of the within admitted this eleventh day of August, 1906," to which the intruder signs hia name: Cal. C. C. P., sec. 1160. New Forms — iO 626 New Book of Forms. DEMURRER. No. 1040. — Demurrer — Complaint not Stating Cause of Action. [Title of Court and Cause.] The defendant demurs to the complaint herein, and for cause of demurrer alleges : That the complaint does not state facts sufficient to constitute a cause of action. NOTE. — The references under this form cover all forms of demurrer to complaints in this book. The defendjint may demur to the complaint within the time required by the summons to answer, when it appears upon the face thereof, either: 1. That the court has no jurisdiction of the person of the de- fendant, or the subject of the action; 2. That the plaintiff has no legal capacity to sue; or 3. That there is another action pending between the Bame parties for the same cause; or 4. That there is a defect, or mis- joinder, of parties plaintiff or defendant; 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 complaint is ambiguous, unintelligible, or uncertain. The complaint must specify the grounds of demurrer, and unless it does, it will be dis- regarcled: Cal. C. C. P., sec. 430; Alaska, Codes, pt. 4, c. 7, sec. 58; Arizona, C. C, par. 1351; Idaho, C. C. P., see. 3206; Montana, C. C. P., sec. 711; Nevada, Comp. Laws, sec. 3135; New Mexico, Comp. Laws, sec. 2685, subd. .35; North Dakota, sec. 5268; Oregon, Codes and Stat- utes, sec. 68; South Dakota, C. C. P., see. 121; Utah, Rev. Stats., sec. 2962; Washington, Ballinger's Codes, sees. 2907, 2911; Wyoming, Bev. Stats., sec. 3535. No. 1041. — Demurrer — Statute of Limitations. [Title of Court and Cause.] Now comes the defendant, and demurring to the complaint herein, for cause of demurrer, alleges : That plaintiff should not maintain this action because the com- plaint shows that it is barred by the provision of suhdizrision num- ber 5, of section 2^p, of the Code of Civil Procedure of the state of California. No. 1042. — Demurrer — Misjoinder of Parties. [Title of Court and Cause.] The defendant demurs to the complaint, and for cause of de- murrer, alleges: Demurrkr. 627 That L. S. K. is improperly made plaintiff in said action, be- cause it appears from the complaint that plaintiff sold and deliv- ered the goods therein described to A. B. C, and that in said trans- action defendant was tlie agent of said A. B. C. No. 1043. — Demurrer — Defect of Parties. [Title of Court and Cause.] The defendant demurs to the complaint, and for cause of de- murrer, alleges: That there is a defect of parties plaintiff in this : It appears in the complaint that an interest in the cause of action therein stated has been assigned to A. B., and the said A. B. should be made a party plaintiff; [or it appears, etc., that C. D. is the principal obligor in said contract, and that the defendant is not liable, ex- cept jointly with the said C. D.] (Signed.) No. 1044. — Demurrer — Want of Jurisdiction of Person. [Title of Court and Cause.] The defendant demurs to the complaint in this action, and for cause of demurrer, alleges : That the court has no jurisdiction of the person of the defend- ant, beaiuse said complaint alleges that the defendant made the contract described in the complaint as consul of the Republic of Paraguay, at the port of San Francisco. No. 1045. — Demurrer — Complaint Uncertain, etc [Title of Court and Cause.] The defendant demurs to the complaint, and for cause of de- murrer alleges: That the complaint herein is uncertain in this: It cannot be ascertained therefrom whether plaintiff sues as assignee or admin- istrator of the estate of A. B., deceased {or any otJtcr ground]. No. 1046. — Demurrer — Misjoinder of Causes of Action. [ Title of Court and Cause.] The defendant demurs to the complaint, and for cause of de- murrer alleges : That several causes of action have been improperly united in this: A cause of action for the conversion of personal propcrtv by defendant, and for damages for the conversion, and an action to recover the possession of the said property. 628 New Book of Forms. No. 1047. — Demurrer — Answer — Not Stating Sufficient Facts. [Title of Court and Cause.] Now comes the plaintifif, and demurring to the answer herein, for cause of demurrer alleges : That the said answer does not state facts sufficient to constitute a defense to diis action. (Signed.) NOTE. — The plaintiff may, within the same length of time after ser- vice of the answer as the defendant is allowed to answer after service of summons, demur to the answer, or to any one or more of the several defenses or counterclaims set np in the answer, upon the grounds: 1. That several causes of counterclaims have been improperly joined; 2. That the answer does not state facts sufficient to constitute a defense or counterclaim; 3. That the answer is ambiguous, unintelligible, or un- certain: Cal. C. C. P., sees. 443, 444; Alaska, Codes, pt. 4, c. 8, sec 65; Arizona, C. C, par. 1354; Idaho, C. C. P., see. 3217; Montana, C. C. P., sec. 715; Nevada, Comp. Laws, sec. 3154; New Mexico, Comp. Laws, sec. 2685, subd. 43; North Dakota, C. C, see. 5277; Oregon, Codes and Statutes, sec. 80; South Dakota, C. C. P., sec. 130; Utah, Eev. Stats., sec, 2976; Washington, Ballinger's Codes, sec 4916; "Wyoming, Eev. Stata,, sees. 3536, 3539-3542, 3554. No. 1048. — Demurrer — Answer Ambiguous, etc [Title of Court and Cause.] Now comes the plaintiff, and, demurring to the answer herein, for cause of demurrer alleges : That the said answer is ambiguous in this : It cannot be ascertained therefrom whether the counter- claim set up is in favor of defendant as a private person, or in his favor as executor of the estate of A. B. C, deceased [or, it is un- intelligible, because it cannot be deciphered; or, because it is tvritten in the Chinese language; or, in other foreign languages; or, for other reasons^. DEPOSITION. No. 1049. — Deposition — Commission to Take. [Title of Court and Cause.] The People of the State of California, to H. H., in City of New York, in the State of New York, Greeting: Whereas, it appears to the Judge of our superior court, in and for the city and county of San Francisco, state of California, that W. C, of the city of New York, in tlie siate of New York, is a DlU'OSITION-. 629 material witness in a certain action now pending in our said su- perior court, between J. D., plaintiff, and R. R., defendant, and that the personal attendance of said witness cannot be procured at the trial of the said action, we, in confidence of your prudence and fidelity, have appointed you, and by these presents do appoint you, a commissioner to examine said witness, and therefore we authorize and empower you, at certain days and places, to be by you for that purpose appointed, diligently to examine said witness on the interrogatories annexed to this commission, in respect to the questions in dispute herein, and upon the interrogatories, di- rect and cross, and upon his oath, first taken before you, and cause the said examination of the said witJicss, to be reduced to writing and signed by tlie same witness, and by yourself, and then certify and return the same annexed to this commission, in a sealed en- velope, unto our superior court aforesaid, directed to the clerk thereof, by mail or other usual channel of conveyance, with all convenient speed, inclosed under your seal. NOTE.— California, C. C. P., sees. 2024, 2027, 2037; Alaska, Codes, pt. 4, c. 62, sees. 645-651; Arizona, C. C, par. 2514; Idaho, C. C. P., see. 4524; Montana, C. C. P., see. 3350; Nevada, Comp. Laws, sec. 3507; New Mexieo, Comp. Laws, sees. 3037-3039; North Dakota, C. C, sees. 8389, 8392; Oregon, Codes and Statutes, sees. 832, 989, 990; South Dakota, C. C. P., sees. 513, 514; Utah, Kev. Stats., sees. 3450, 3452; Washington, Ballinger's Codes, sees. 260, 4729, 6023, 6708; Wyoming, Eev. Stats., sees. 3714, 4370. No. 1050. — Deposition — Instructions to Commissioners. 1. All the commissioners named in the commission shall have notice of the time and place of executing it ; and if any of them do not act, let the fact that they were notified, or could not be notified, and the reasons for their not acting, be stated. 2. The commission must be executed by H. H., the commis- sioner named therein. 3. The acting commissioner will examine the witnesses sep- arately, after publicly administering to them the following oath or afiirmation : "You do solemnly swear, that tlie evidence you shall give in this issue, pending between /. D. and R. R., shall be the truth, the whole truth, and nothing but the truth. So help you God." Or, if the witness shall declare that he has conscientious scru- ples against taking an oath, or swearing in any form, he shall be permitted to make his affirmation, in the following form: "You do solemnly declare [or affirm]," as above. 4. The general style or title of the depositions must be drawn up in the following manner : "Depositions of witnesses produced, sworn [or aflRrmed] and examined, the thirteenth day of February, in the year 1006, at New York, under and by virtue of a commission issued out of the 630 New Book of Forms. superior court, in and for the city and county of San Francisco, state of California, in a certain cause therein depending and at issue between /. D., plaintiff, and R. R., defendant, as follows : "A. B., of [insert his place of residence and occupation], aged forty years and upward, being duly and publicly sworn [or af- firmed, pursuant to the directions hereto annexed, and examined on the part of the plaintiff, doth depose and say as follows, viz. : First — To the first interrogatory he saith," etc. [insert the wit- ness' anszver]. "Second — To the second interrogatory he saith," etc., and so on throughout. If he cannot answer, let him say that he does not know. 5. If there be any cross-interrogatories, the witness will go on thus : "First — To the first cross-interrogatory he saith," etc., and so on throughout. 6. Vviien the witness has finished his deposition, let him sub- scribe it, and the acting commissioner will certify as follows : "Examination taken, reduced to writing, and by the witness subscribed and sworn to tliis fifteenth day of February, ipo6, before "H. H., Commissioner." 7. If any papers or exhibits are produced and proved, they must be annexed to the depositions in which they are referred to, and be subscribed by the witness, and be indorsed by the acting commissioners, in this manner: "At the execution of a commission for the examination of wit- nesses, between /. D., plaintiff, and R. R., defendant, this paper writing was produced and shown to [insert the witness' name], and by him deposed unto at the time of his examination, before "H. H., Commissioner." 8. The acting commissioners will sign their names to each half sheet of the depositions and exhibits. 9. If an interpreter is employed, one of the commissioners will administer to him the following oath, and certify thereto: "You do solemnly swear that you will truly and faithfully in- terpret the oath and interrogatories to be administered to W. G. L., a witness now to be examined, out of the English language into the Chinese language, and that you will truly and faithfully interpret the answers of the said W. G. L. thereto, out of the Chinese into the English language." Let the deposition be subscribed by the interpreter as well as by the witness, and certified by the acting commissioners as fol- lows : "Examination taken, reduced to writing, subscribed by the wit- ness and by the sworn interpreter, and sworn to by the witness, this fifteenth day of February, ipo6, before "H. H., Commissioner." Deposition. 63 c 10. The commissioner will make return on the back of the com- mission by indorsement, thus : "The execution of this commission appears in certain sched- ules hereunto annexed. "H. H., Commissioner." 11. The depositions and exhibits (if any) must be annexed to the commission, and then the commission, the directions, the in- terrogatories, cross-interrogatories, depositions, and exhibits must be folded into a packet and bound with tapes. The acting com- fuissioners are to set their seals at the several meetings or cross- ings of the tapes, indorse their names on the outside, and direct It thus : "To IV. A. S., Esq., Clerk of "the Superior Court of the City and "County of San Francisco, California.'*' 12. When the commission is thus executed, made up, and di-' rccted, it must be returned in the manner specified in the direc- tion on the commission if there be any. 13. If there be no direction on the commission specifying the manner in which it is to be returned, then it must either be de-. livered to the court by one of the acting commissioners person- all}', or else be forwarded by some person coming to this place, and who must be able, on his arrival, to make oath before one of the judges or the clerk of the court : "That he received the same from the hands of A. B., one of the commissioners, and that it had not been opened or altered since he so received it." 14. In case of returning the commission by mail, it is to be deposited by one of the acting commissioners in the nearest post- office, he making the following indorsement thereon : "Deposited in the postoffice at the city of New York, this eigh- teenth day of February, ipo6, by me, "H. H., Commissioner." 15. In case of returning the commission by a vessel, it is to' be deposited by one of the acting commissioners in the letter-bag of such vessel, he making upon the commission the following in- dorsement (it may also be forwarded by any usual convevance) : "Deposited in the letter-bag of the ship Glory of the Seas, now lying at Pier No. 12, and bound for the port of San Francisco, this nineteenth day of Febuary, ipo6, by me. "H. H., Commissioner." The commissioners are requested to be very careful to observe the foregoing instructions, as the smallest variance may vitiate the execution of tlie couimission. 632 New Book op Forms. NOTE. — California Code of Civil Procedure has no provision requir- ing instructions to be given to commissioners. The form is drawn sub- stantially according to the general practice. In some states the courts regulate the matter by rule. In others there is no rule or statute. The applicant for the commission usually requests the elerk to give similar instructions so that his deposition may not be ruled out for informality. AH code provisions in Code of Civil Procedure, sees. 2019-2038. No. 1051. — Deposition — Introduction to the Testimony. [Title of Court and Cause.] Be it remembered. That, pursuant to the order hereunto an- nexed, and on the first day of March, ipo6, at Quincy, in the county of Plumas, state of California, before me, F. B. W., a no- tary public in and for the said county of Plumas, personally ap- peared /. A., witness, produced on behalf of plaintiff in the above- entitled action, now pending in the said court, who, being first by me duly sworn, was then and there examined and interrogated by B. P. B., Esq., of counsel for the said plaintiff, and by 0. F. S., Esq., of counsel for the said defendant, and testified as fol- lows : [Set out evidence in full.] [See Notice, Affidavit, Stipulation, Instruction to Commission- er, Commission.] DEFAULTER. No. 1052. — Defaulters, Attachment for. [Title of Court and Cause.] The People of the State of California to the Sheriff or any Con- stable of said County, Greeting: You are hereby commanded forthwith to attach the body of /. C, defaulting juror, and have him before our said court, on the twenty-ninth day of January, igo6, at ten o'clock A. M., then and there to show cause why he should not be punished for con- tempt in disobeying the order summoning him to appear and serve as a juror in said court. (All courts.) KOTE.— California, C. C. P., sec. 238. DiRJicrioNS — DissoLrUTioN. 633 DIEECTIONS. No. 1053. — Directions to Officer. [ Title of Court and Cause.] In C. B., Esq., Cofustable, Bush Street, Township Alameda: By authority of the writ of attachment issued in the abcve-en- titled action, you will please attach and safely keep all of the fol- lowing:^ described property: [Description.] And you are hereby notified that S. K., Esq., has in his pos- session the following described property belonging to defendant: [Description.] (All courts.) DISSOLUTION. No. 1054. — Dissolution — Corporation — Objections to. [Ti'Je of Court and Cause.] Now comes W. F., a claimant for damages and a creditor of said M. G. Company, and files his objections to the application of said company to dissolve. The objection is, that all claims and demands against said cor- poration have not been satisfied and discharged, and particularly the claim of him, the said F., for damages, has not been satis- fied or discharged, and an action at law has been commenced bv him, the said F., to recover said damages, to wit, the sum of fif- teen tJwusand dollars, for injuries received through the default and negligence of said corporation, which occasioned an explosion of gas, and consequent damage to said F., as set forth in the com- plaint in said action, which has been served upon the defendant; and said action is now pending in the superior court of the city and countA^ of San Francisco, state of California. Wherefore, tliis objector prays that said petition may be denied. 634 New Book of Forms. EXECUTOR AND ADMINISTEATOR. No. 1055. — Administrator — Request for His Appointment by Person Entitled to Letters. [ Title of Court and Estate.] To the Honorable, the Superior Court of the City and County of Sari Francisco, State of California : The undersig'ned is the surviving wife of the said A. B., de- ceased. That C. D. has at her request filed his petition to be appointed administrator of the estate of said deceased. That the undersigned is a resident of the county of Alameda, state of Cali- fornia, and is competent to serve as administrator of said estate. NOTE. — Administration may be granted to a person not entitled to letters at the written request of the person entitled. If the person entitled is a nonresident of the state, his affidavit, taken before an officer who has authority, by the laws of California, to administer oaths out of said state may be received as prima facie evidence of the iden- tity of the affiant. If the person entitled is a resident of the state, he must appear before the court in person: Cal. C. C. P., sec 1379; Arizona, C. C, par. 1661; Idaho, C. C. P., sec. 4055; Montana, C. C. P., sec. 2448; Nevada, Comp. Laws, sec. 2834; North Dakota, Probate Court, sec. 6319; South Dakota, Probate Code, see. 94; Wyoming, Bev. Stats., sec 4625. No. 1056. — Administrator — Objections to His Appointment. [Title of Court and Estate.] Now comes S. A. /., a son of said deceased, and objecting to the appointment oi M. A. J. [mother of this objector and widow of said deceased] , administratrix of this estate ; for reasons why- she should not be appointed alleges: That said M. A. J. is a non- resident of this state and a resident of the state of Nevada ; Tliat she is incompetent to perform the duties of administratrix of said estate because of her want of understanding in this; She can neither read, write, nor speak the English language; and also because she has no knowledge of business, and has not sufficient business capacity to manage said estate; Or She was on the loth day of May, IQ06, adjudged by the superior court of Sierra county, California, a court of competent jurisdiction, to be incompetent to transact business, and said ad- judication has never been modified or set aside and is now in force; and she is now incompetent as in said decree adjudged. This contestant further alleges that he is entitled, after his motlier,, to letters of administration on said estate. Executor and Administrator. G35 Wherefore this contestant prays that the appHcation of said M. A. J. be denied and that letters be issued to this contestant. NOTE. — Any person interested may contest the application for letters of administration by filin<( opposition on tht- j^rruuinl of the im-oinpe- tency of i\w a])i)iic!int, and may assort his own rights to the administra- tion and pray for letters for himself: Cal. C. C. P., sec. 1374; Arizona, C. C, par. 1656; Idaho, C. C. P., sec. 4050; Montana, C. C. P., sec. 2143, Nevada, Comp. Laws, sec. 2829; North Dakota, Probate Code, sec. 6306; Soiitli Dakota, Probate Code, sec. 89; Utah, Rev. Stats., sec. 3819; Wy- oming, Rev. Stats., sec. 4649. No. 1057. — Executor — Objections to His Appointment. [Title of Court and Estate.] Now comes A. P., and objecting to the appointment of peti- tioner C. D. as executor of the last will of E. P., deceased, repre- sents to the court that the said C. D. is not competent to execute the duties of the trust of executor of said will by reason of his drunkenness [or by reason of his improzidence, or want of under- standing, or want of integrity]. Petitioner further states that he is a brother of deceased and also a creditor of his estate. That the drunkenness of said C. D. h habitual. Wherefore petitioner prays that the petition of C. D. for letters be denied, NOTE. — For any of the reasons given in the text of this form and in the part in brackets the court may refuse letters to an applicant: Cal. C. C. P., sec. 1351. The practice is to file with the petition an applica- tion for letters with the will annexed for the objector or some other person. It does not appear to be necessary to state in the objections the facts upon which they are founded; but it is prudent to state the facts: Alaska, Codes, pt. 4. c. 81. sec. 797; Arizona, C. C par. 1638; Montana, C. C. P., sec. 2402; Nevada. Comp. Laws, sec. 2814; North Dakota, Probate Code, sec. 6303; South Dakota, Probate Code, sees. 70, 71; Utah. Rev. Stats., sec. 3800; Washington, Ballinger's Codes, sec 6126; Wyoming, Rev. Stats., see. 4629. No. 1058. — Executor — Objections to His Appointment. [Title of Court and Estate.] Now comes Amanda Wilcox, widow of said deceased, and ob- jecting to the appointment of Henry Wilson, executor; for cause why he should not be appointed alleges : That said Henry Wilson is a man of bad repute; an idle and dissolute person and is not possessed of any property zvhatez'er, and his nani-e is not on the assessment-roll at any place in said state. That said Henry H'il- son has a brother named Hari'ey Wilson, who zvas a zvarm per- sonai friend of said deceased, and his constant companion; and 6^6 Ndw Book of Forms. man of good repute; a well-to-do merchant and assessed in said county for property worth $100,000. Th-at deceased re- quested said Hart'cy IVilson to serve as his executor and notified him tlvcU he had appointed him executor without bonds, and, therefore, contestant alleges tlmt deceased by mistake wrote the name of 'his executor Henry instead of Harz'ey IVilson. Where- fore, etc. [at the same time' file a petition for letters with the will annexed]. NOTE. — Any person interested may file objections to granting letters to the person named as executor. At the same time a petition may be filed for letters with the will annexed: Gal. C. C. P., sec. 1351. Of course, a contest in such a proceeding will depend principally upon the fact of the eligibility of Henry W.; but the fact that such mistake was made would naturally influence a judge to favor the opposition if the facts strongly sustained the allegations, though not conclusive of its absolute verity: Arizona, C. C, par. 1638; Idaho, C. C. P., sec. 4033; Montana, C. C. P., see. 2402; Nevada, Comp. Laws, sec. 2814; North Dakota, Probate Code, sec. 6306; South Dakota, Probate Code, sec. 71; Utah, Eev. Stats., sec. 3800; Washington, Ballinger's Codes, sec. 6126; Wyoming, Rev. Stats., sec. 4629. No. 1059. — Executors — Acting One for the Other. [Title of Court and Estate.] Whereas, I am one of the two executors of the last will and estate of H. B., deceased. Now, I hereby give my coexecntor, S. S., authority to act for me in all matters pertaining to said es- tate the same as if I took part personally. NOTE. — Where there are two executors or administrators the act of one is effectual if the other is absent from the state, or laboring under any legal disability from serving [serving a term in a state's prison would be a disability.] Or if he has given his coexecutor or admin- istrator authority, in writing, to act for both. Where there are more than two the majority govern: Cal. C. C. P., see. 1355. It is a safe practice to present such written power to the court in which the matter is pending. In such case it will be filed, and become a permanent record. It may not be necessary, but the title to real estate may be involved; therefore it is prudent to cause such power to be acknowledged and recorded; at least it ought to be witnessed: Arizona, C. C, par. 1642; Idaho, C. C. P., sec. 4037; Montana, C. C. P., sec. 2406; Nevada, Comp. Laws, sec. 2818; South Dakota, Probate Code, sec. 75; Utah, Rev. Stats., sec. 3910; Washington, Ballinger's Codes, see. 6133; Wyoming, Rev. Stats., sec. 4633. No. 1060. — Executor — Concealed or Embezzled Property^ Complaint to Court, [Title of Court and Estate.] Now comes A. B., and complaining to the court of C. D. states that he is the appointed, qualified and acting executor of the last will of £. F,, deceased, now in course of administration in the Executor and Administrator. G^^'J above-entitled matter and for cause of complaint states that he suspects aforesaid C. D. of having concealed from complainant, as executor of said will, one hundred shares of San Francisco Cos and Electric Company corporation stock. That said stock stands in the home of deceased on the books of said corporation, but was not indorsed by him. That deceased kept said stock in a drawer in his desk, and the day after his death complainant saw the faid C. D. examining the said drawer, which was not locked. Since then said stock cannot be found- That said C. D. is now in the county of Butte, California. Wherefore complainant prays that the said C. D. may be cited to appear before this court, that he may be examined under oath upon the matter of the aforesaid complaint NOTE. — Under the circnmstanccs stated in the above complaint, or when a person is- suspected to have concealed, embezzled, smuggled, conveyed away, or disposed of any money, goods or chattels of a de- cedent, or has in his possession any conveyances, bonds, contracts, or other writings which contain evidence of title to property, or or any lost will, he may be cited to appear and be examined as to such prop- erty upon complaint of any interested person: Cal. C. C. P., sec. 1459; Arizona, C. C. P., par. 1722; Idaho, C. C. P., sec. 4116; Montana, C. C. I'., sec. 2571; Nevada, Comp. Laws, see. 2882; North Dakota, Probate Codes, sees. 6373-6379; Oregon, Codes and Statutes, see. 1148; South Dakota, Probate Code, sees. 149-152; Utah, Rev. Stats., sec. 3927; Wash- ington, Ballinger's Codes, sec. 6212; Wyoming, Eev. Stata^ sec 4690. No. io6i. — Executor — Account to Render — To be Arrested. [Title of Court and Estate.] This court having made an order that C. D. appear before this court on this day and render an exhibit showing the amount of money received and expended by him since the date of the filing of his first account, and he not appearing and filing said exhibit as commanded : It is ordered that a warrant of arrest for the said C. D. be issued by the clerk of this court and delivered to the fheriff of this county of Alameda, and that said sheriff arrest said C. D. and bring him forthwith before this court NOTE. — If such exhibit is not made as directed, attachment may be issued against the administrator and such exhibit enforced: Cal. (J. C. P., sec. 1627. If an administrator is delinquent in filing his annual account, he will not be attacked until after citation has issued; but when he has been ordered to render an exhibit under sections 1624, 1625, he may be ar- rested if he disobeys: Arizona, C. C, par. 1856, 1857, 1859; Idaho, C. C. P., sees. 1244, 1245, 1247; Montana, C. C. P., sees. 2782, 2783. 2785; North Dakota, Probate Code, sees. 6362-C371, 6487-6491, 6493; Oregon, Codes and Statutes, sees. 1200, 1210; South Dakota, Probate Code, sees. 273, 2V5, 277; Washington, Ballinger's Codes, sees. 6317, 6318, 6320; Wyoming, Eev. Sta.ts., sees, 4714, 4715, 4717. 638 New Book of Forms. No. 1062, — Executor — Lease, Court's Order for, [Title of Court and Estate.] This lease, made this jd day of June, IQ06, by authority of the order of the superior court of the county of Marin, sitting in probate, made on tlie 2(1 day of June, igo6, between £. D., ad- ministrator of the estate of C. D., deceased, the party of the first part, and G. H., the party of the second part, bears witness : That the party of tlie second part has covenanted to pay the party of the first part $12,000 in gold coin of the United States, and the party of the first part has agreed to execute and deliver to him a lease of the premises described as follows, to wit [description], for a term of five years from the date of this writing, and the partv of the second part has agreed to pay said $12,000 in 60 equal installments of $200 each, and to pay them on the first day of each month in advance, and has agreed not to sublet or assign this lease without an order of court until said distribution is made of the property herein described. [And insert such other cove- nants and conditions as the court's order directs.] KOTE. — A certified copy of the order must be recorded in the county in which some part of the property lies. No omission, error, or irregu- larity in the proceedings impairs or invalidates the lease: CaL C. C P., SLC. 1579j Arizona, C. C, par. 1824. No. 1063. — Executor's Contract to Pay Debt of Estate. [Title of Court and Estate.] Whereas A. B., a creditor of the estate of C. D., deceased, has promised the undersigned, executor of the last will of said C. D., deceased, that he will not bring an action to foreclose a mortgage he holds against the estate of deceased upon the following de- scribed land [description], and in consideration of said promise, the undersigned promises that he will pay the amount due uipon said mortgage within two years from the date hereof out of his own estate. NOTE.— California. C. C. P., sec. 1612; Arizona, C. C, par. 1847, 2696; Idaho, C. C. P., sec. 423.5; Montana, C. C. P., sec. 2770; Nevada, Comp. Laws, sec. 2963; North Dakota, Probate Code, sec. 6478; Oregon, Codes and Statutes, sec. 797; South Dakota, Probate Code, sec. 265; Utah, Rev. Stats., soc. 2467; Washington, Ballinger's Codes, sees. 4576, 6308; Wy- oming, Eev. Stats., sees. 2953, 4706. Execution. 639 EXECUTION. No. 1064, — Execution Against Administrator upon Decree for Payment of Debts. [Title of Court and Estate.] The People of the State of California, to the SherifT of the County of Napa, Greeting: Whereas on the 6th day of June, IQ06, a decree was made by the said sperior court of the county of Napa for the payment of the creditors of the estate of A. B. C, deceased. That E. F. C, is one of the creditors of said estate whose claim wa.« decreed to be paid, and the amount decreed to be paid him by H. I. J., the administrator of said estate is $3,i93./3, that being the amount actually due him, said £. F. G., under said decree, and whereas said decree is filed in the clerk's office of said court, and said decree was docketed in said clerk's office on the day and year first above written : Now, you, the said sheriff, are hereby required to make the said sums due on the said decree, with interest as aforesaid, and costs and accruing costs to satisfy the said decree out of the personal property of said H. I. J., or, if sufficient personal prop- erty of said H. I. J. cannot be found, then out of the real prop- erty in your county belonging to him on the day whereon said decree was docketed in the said county, or any time thereafter; and make return of this writ within sixty days after your receipt hereof, with what you have done indorsed hereon. Witness, etc. NOTE. — In such cases the creditor may have execution on the decree as upon a judgment in the court in favor of each creditor; and the "same proceedings may be had under the execution as under execution in other cases": Cal. C. C. P., sec. lG-19. In other cases the decree or judgment bears the statutory interest, which is not expressly allowed in probate matters. Section 1649 makes the administrator personally lia- ble to each creditor for his allowed claim, and it seems that he iri liable for interest from the date of the docketing of the decree: Alaska, Codes, pt. 4, c. 87, sec. 879; Arizona, C. C, par. 1881; Idaho, C. C. P., see. 4265; Montana, C. C. P., sec. 2816; Nevada, Comp. Laws, sec. 2987; Ore- gon, Codes and Statutes, sec. 1219; South Dakota, Probate Code, sec. 297; Utah, Rev. Stats., sec. 3875; Washington, BaUinger's Codes, sec 63o9; Wyoming, Ecv. Stats., sec. 4732. No. 1065. — Execution — Judgment for Money. [Title of Court and Estate.] [The same as in the next preceding form down to the words "and whereas," and conclude as follows:] 640 New Book of Forms. And whereas, the judgment-roll in the action in which said judgment was entered is filed in the clerk's office of said court, in the city and county of San Francisco, and the said judgment was docketed in the clerk's office in the said city and county, on the day and year first above written. And the sum of one thousand dollars, with interest thereon, and costs of suit taxed at fifty-four dollars, is now (at the date of this zirit) actually due on said judgment. Now you, the said sheriff, are hereby required to make the said sums due on the said judgment, with interest, as aforesaid, and costs and accruing costs, to satisfy the said judgment, in gold coin of the United States, out of the personal property of said debtor, or, if sufficient personal property of said debtor cannot be found, then out of the real property in your county, belonging to him on the day whereon said judgment was dock- eted, in the said county, or any time thereafter ; and make re- turn of this writ within sixty (60) days after your receipt hereof, with what you have done indorsed thereon. NOTE. — California, C. C. P., sec. 726; Alaska, Codes, pt. 4, c. 31, sees. 265-300; Arizona, C. C. P., par. 2559; Idaho, C. C. P., sec. 3534; Mon- tana, C. C. P., see. 1211; Nevada, Comp. Laws, sec. 3307; New Mexico, Comp. Laws, sec. 3106; North Dakota, C. C. P., sec. 5505; Oregon, Codes and Statutes, sec. 215; South Dakota, C. C. P., sees. 328-343; Utah, Rev, Stats., sec. 3233; Washington, Ballinger's Codes, sec. 5195; Wyoming, Bev. Stats., sees. 3915-3924. No. 1066. — Execution — Deficiency of Sale. [Title of Court and Cause.] The People of the State of California, to the Sheriff of the City and County of San Francisco, Greeting: Whereas, on the sixth day of June, igo6, J. D., plaintiff, re- covered a judgment in the said superior court of the city and county of San Francisco, state of California, against R. R. and P. J., defendants, for the foreclosure of a certain mortgage, and the sale of the mortgaged premises, to satisfy the sum found due to the said plaintiff for principal and interest, to wit, the sum of $g,ooo, gold coin of the United States of America, with interest from the date of said judgment, at the rate of seven per cent per annum, till paid, together with the costs and expenses of sale, as appears to us of record; in obedience to which judg- ment the said sheriff sold the said mortgaged premises, and applied the proceeds of sale as therein directed, and has made his return unto said court that there is a deficiency of such pro- ceeds of sale, and that there is still due to the plaintiff the sum of five thousand dollars, gold coin of the United States of Amer- ica, bearing interest at the rate of seven per cent per annum from tlie sixth day of August, ipo6 (the date of the said return). Execution. 641 And whereas, the jud.G^ment-roll in the action in which said juHc^ment was entered is filed in the clerk's office of said court, in the cifv and county of San Francisco, and the said judgment was docketed in said clerk's office, in the said city and county, for said balance or deficiency, on the sixth day of August, ipo6, against R. R., the judgment debtor, who is by said judgment made per- sonally liable therefor, and the sum of fiir thousand dollars, gold coin of the United States of America, with interest at the rate of seven per cent per annum, from the said date of said docketing, is now actually due on said judgment. Now, you, the said sherifT, are hereby required to make the said sum due on the said judgment, with interest as aforesaid, and costs and accruing costs, to satisfy the said judgment, in gold coin of the United States of America, out of the personal property of the said debtor, R. R., or, if sufficient personal prop- erty of said debtor cannot be found, then out of the real property in your county belonging to him, on the day whereon said judg- ment was docketed, in the aforesaid city and county, or at any time thereafter ; and make return of this writ within sixty days, with what you have done indorsed herein. NOTE. — After sale on foreclosure of a mortgage upon real or per- sonal property, if the return of sale shows that the proceeds are in- BuflRcient, and a balance still remains duo, judgment can then be dock- eted for such balance in the office of the court having jurisdiction over the execution, against the defendants personally liable for the debt, and it becomes a lien on the real estate of such judgment debtor, as in other cases on which execution may issue: Cal. C. C. P., sec. 726; Alaska, Codes, pt. 4, c. 31, sees. 300, 365; Arizona, C. C, pars. 2557- 25S3; Idaho, C. C. P., sec. 3550; Montana, C. C. P., sec. 1212; Nevada, Comp. Laws, sec. 3307; New Mexico, Comp. Laws, sec. 3106; North Dakota, C. C. P., sec. 5505; Oregon, Codes and Statutes, sec. 215; South Dakota, C. C. P., sees. 328-343; Utah, Rev. Stats., sec. 3233; Washington, Ballinger's Codes, sec. 5195; Wyoming, Rev. Stats., sees. 3915-3924. No. 1067. — Execution — Order of Sale. [Title of Court and Cause.] The People of the State of California, to the Sheriff of the City and County of San Francisco, Greeting: Whereas, on the sixth day of May, ipo6, C. B. JV., the above- named plaintiflF, recovered a judgment and decree in the superior court of the city and county of San Francisco, state aforesaid, against /. /. /., the defendant, in an action wherein the said C. B. ]V . was plaintiff, and the said /. /. /., defendant, which said judgment and decree was on the sixth day of May, igo6, recorded in Judgment-book B of said court, at page /d, and the roll filed and judgment and decree docketed in the clerk's office thereof, and in and by which said judgment and decree it is ordered, ad- judged, and decreed that the lands and premises mentioned and Now Forms — il 642 New Book of Forms. described in the said judgment and decree be sold at public auction, as in said judgment and decree particularly set out. Now, therefore, you the said sheriff, are hereby commanded and required to proceed to give notice for sale, and to sell the premises described in said judgment and decree, a copy of which IS hereto annexed and made a part hereof, and apply the proceeds of said sale as in said judgment and decree directed, and to make and file your report of such sale with the clerk of this court within sixty days from the date of your receipt hereof, and to do all things according to the terms and requirements of said judgment and decree and the provisions of the statute in such case made and provided. NOTE.— California, C. C. P., sec. 726. FINDINGS. No. 1068. — Finding — Decision of Court. [Title of Court and Cause.] This cause came on regularly for trial on the twenty-first day of August, igo6, before the court without a jury — a jury trial having been duly waived by the parties, and H. E., Esq., appear- ing as attorney for plaintiff, and C. H., Esq., for defendant, and from the evidence introduced the court finds the facts as follows, to wit: 1. That on the sixteenth day of May, igo6, said defendant exe- cuted and delivered to plaintiff the promissory note set forth in the complaint herein. 2. That said note was executed for and in consideration of $700 United States gold coin, loaned by plaintiff to defendant at the date thereof. [This in the event that want of or failure of, consideration is at issue.] 3. That $250, and no more, United States gold coin has been paid on account thereof. 4. That the amount or principal and interest now due and un- paid according to the terms of said note, is $517.75, United States gold coin. [Or (in lieu of i, 2, 5, 4); The court finds: That all the allega- tions of the complaint herein are true ; or. The court finds that all the allegations of the answer herein are true; or. That de- fendant made and paid the note and all the interest thereon be- fore action.] Findings — Guardian. 643 As a conclusion of law from the foregoing facts, the court finds that plaintiff is entitled to judgment for the sum of $517-75' in United States gold coin, and costs of suit, and it is ordered that judgment he entered accordingly; [or, that defendant is en- titled to judgment for costs; or, on his counterclaim, etc.] (Signed, etc.) NOTE.— Idaho, C. C. P., seca. 3485, 3495; Montana, C. C. P., sec. 1111; Nevada, Comp. Laws, sec. 3277; North Dakota, C. C. P., sees. 5451- 5460; Oregon, Codes and Statutes, sec. 406; South Dakota, C. C. P., Bees. 270-278; Utah, Rev. Stats., sees. 3169-3177; Washington, Ballinger's Codes, sec 5029; Wyoming, Rev. Stats., sec. 3660. GUARDIAN. No. 1069. — Guardianship, Letters of. [Title of Court and Estate.] M. J., is hereby appointed guardian of the person and estate of W. J., a minor. Witness, W. A. S., clerk of the superior court of the city and county of San Francisco, with the seal of the court affixed, the twelfth day of December, ipo6. Bv order of the court. [Seal] W. A. S. State of California, City and County of San Francisco, — ss. I do solemnly swear that I will perform, according to law, the duties of guardian of the person and estate of W. J., a minor. NOTE. — rhe superior court of each county may appoint guardians for the persons and estates, or either of them, of minors who have no guardian legally appointed by will or deed, and who are inhabitants or residents of the county, or who reside without the state and have estate within the county. Such appointment may be made on the peti- tion of any person on behalf of the minor, or on the petition of tho minor, if fourteen years of age. Before making such appointment tho court must cause reasonable notice to be given to any person havinc the care of such minor, and to such relatives of the minor residing in the county as the court may deem proper: Cal., C. C. P., sec. 1747; Alaska, Codes, pt. 4. c. 88, sec. 888; Arizona, C. C, par. 1954; Idaho, C. C. P., sec. 4339; Montana, C. C. P., sec. 2950; Nevada, Comp. Laws, sees. 559, 560; New Mexico, Comp. Laws, sec. 1434; North Dakota, Probate Code, sec. 6537; Oregon, Codes and Statutes, sec. 5259; South Dakota, Probate Code, sec. 366; Utah, Rev. Stats., sec. 3994; Wash- ington. Ballinger's Codes, sec. 6395; Stats. 1903, p. 242; Wyoming, Rev. Stats., sec 4866. 644 New Book of Forms. No. 1070. — Guardian, Nomination of, by Minor. [Title of Court and Estate] To the Honorable, the Superior Court of the County of Alameda. I hereby nominate A. B., and join in his petition asking the court to appoint him guardian of my person and estate. NOTE. — If a minor is fourteen years of age he may nominate his own guardian, and the court is commanded to "accordingly" appoint the choice of a minor if he approves of him: Cal., C. C, P., sec. 1748. If the nominee of the minor is not approved by the court, and if the minor neglects for ten days, after citation, to appoint a suitable guard- ian, the court may appoint one for him as if he were under fourteen years of age: Id., sec. 1749. In brief, a minor has no absolute right at any time to choose his own guardian: Id., sec. 1750; Alaska, Codes, pt. 4, c. 88, sec. 889; Arizona, C. C, par. 2004; Idaho, C. C. P., sec. 4373; Montana, C. C. P., see. 3007; Nevada, Comp. Laws, sec. 585; New Mexico, Comp. Laws, sec. 1434; North Dakota, Probate Code, sec. 6540; South Dakota, Probate Code, sec. 367; Wyoming, Eev. Stats., sec. 4914. No. 107 1. — Guardian, Assent cf All Persons to Sale by. [Title of Court and Estate.] We, the undersigned, being the father, mother and all the brothers and sisters of A. B., a minor, and being all those inter- ested in his estate, hereby consent to the making of an order of sale, and sale of all that real estate described as follows, to wit [description], as prayed for in the petition of C. D., the guardian of said A. B., and which petition was filed in said court on June 3d, 1905- NOTE. — Unless such consent is given the court must order notice to he served on the next of kin and on all persons interested ; and an order may be made to publish the notice. Such consent saves four wieks* delay and saves the cost of service and publication: Cal., C. C. P., sees. 1782, 1783; Alaska, Codes, pt. 4, c. 89, sees. 918-939; Arizona, C. C, pars. 2002, 2003; Idaho, C. C. P., sees. 4371, 4372; Montana, C. C. P., sees. 3005, 3006; Nevad.i, Comp. Laws, 584; North Dakota, Pro- bate Code, sees. 6566, 6567; Oregon, Codes and Statutes, sees. 5598, 5599; South Dakota, Probate Code, sec. 398; Washington, Ballinger's Codes, sec. 6413; Wyoming, Bev. Stats., sees. 4912, 4913. No. 1072. — Guardian, Consent to Sale by. [Title of Court and Estate.] To the Honorable the Superior Court: The undersigned, the father and mother and the only sister and brother of F. McD. a minor, hereby consent to the sale of the Guardian — Indici'ment or Information. 645 real estate described in the petition of the guardian of the per- son and estate of said minor now on file in said court. We are all and the only persons interested in said minor and his estate. G. McD., Father of said minor. M. McD., Mother of said minor. R. McD., Brother of said minor. C. McD., His sister. NOTE. — A copy of the order must be personally served on the next of kin of the ward, and on all persons interested in the estate, at least fourteen days before the hearing of the petition [or must be published at least once a week for three successive weeks in a newspaper printed in the county, or, if there be none j)rinted in the county, then in such newspaper as may be specified by the court in the order. If written consent to maidng the order of sale is subscribed by all persons inter- ested therein and the next of kin, notice need not be served or pub- lished]: Cal., C. C. P., sec. 1783; Alaska, Codes, pt. 4, c. 89, sees 924-926; Arizona, C. C, par. 203; Idaho, C. C. P., sec. 4372; Montana, C. C. P., Bee. 3006; Nevada, Comp. Laws, sec. 584; North Dakota, Probate Code, Bees. 6566, 6567; Oregon, Codes and Statutes, sec 559; South Dakota, Probate Code, sec. 398; Wyoming, Rev. Stats., sec. 4913. ESTDICTMENT OR INFORAIATION. No. 1073. — Indictment or Information. [Title of Court and Cause.] /. W. is accused by the Grand Jury of the city and county of San Francisco, by this indictment [or by the district attorney of said county by this information] of the crime of murder [giving its legal appellation, such as murder, arson, or the like, or des- ignating it as felony or misdemeanor] committed as follows: The said /. W., on the first day of February, 1906, at the city and county of San Francisco, State of California [here set forth the act or omission charged as an offense] contrary to the form, force, and effect of the statute in such case made and provided, and against the peace and dignity of the people of the state of Cali- fornia. (If an information, say:] Names of witnesses examined before the Grand Jury on find- ing the foregoing indictment. [Here insert names.] [If an information, say:] Names of witnesses examined before filing the foregfoino- in- formation. [Here insert names.] 646 New Book of Forms. indorsement. Indictment [or information] for Murder. The People of tlie State of California, against /. IV. A true bill: W. P., Foreman of the Grand Jury. Presented by the foreman of the Grand Jury in the presence of the Grand Jury, in open superior court of the county of Santa Barbara, state of California, and filed as a record of said court, this third day of May, 1906. A. B. W., Clerk. [If an information say:] Presented by the district attorney in the superior court of the city and county of San Francisco, state of California, and filed as a record of said court this third day of May, ipo6. A. B. W., Clerk. NOTE. — There is no difference between indictment and information, except in name and in the proceedings leading up to them. The in- dictment or information must contain: 1. The title of the action, speci- fying the name of the court to which the same is presented, and the name of the parties; 2. A statement of the acts constituting the of- fense in ordinary and concise language, and in such manner as to en- able a person of common understanding to know what is intended. The statute prescribes a form, and says they must be substantially like it: CaL, Pen, Code, sees. 950, 951. INVENTORY AND APPRAISEMENT. No. 1074. — Inventory — Appraisement, [Title of Court and Estate.] The following is a true inventory and appraisement of all fne estate of T. J., deceased, which has come into the possession of the undersigned administratrix: Moneys belonging to the said deceased, which have come into the hands of the administratrix $§0 00 REAL, ESTATE. A certain lot, piece, or parcel of land, situate, lying, and being in the city and county of San Francisco, state of California, and bounded and particularly de^ scribed as follows, to wit: [Description.] Inventory and Appr^mseme^nt. 647 PERSONAL ESTATE. Household Furniture; I Parlor Stove, appraised at the sum, etc 20 00 I Gold Watch and Chain, appraised at the sum of. . lOO 00 2$ Shares of the Zenith Gold and Silver Mining Company, appraised at $100 per share ^,500 00 Appraised value of whole estate $11,^20 00 The whole of the estate mentioned in the fore.s^oin.^ inventory is community property, as far as can be ascertained from said ad- ministratrix. We, the undersigned, duly appointed appraisers of the estate of T. J., deceased, hereby certify that the property mentioned in the foregoing inventory has been exhibited to us, and that we appraise the same at the sum of fourteen thousand one hundred and thirty-seven dollars ($14,137). NOTE. — The executor or administrator mnst make and return to the ronrt, within three months after his appointment, a true inventory and appraisement of all the estate of the decedent, including the homestead, if any, which has come to his possession or knowledge: Cal., C. C. P. sec. 1443. [It was evidently the intention of the statute that the executors, having a presumed knowledge of his, decedent's affairs, should place values upon the property he describes in his inventory, the same as in Colorado, but the practice is to leave the values out to be added by the appraisers.] It must be signed by the appraisers, and the executor or admin- istrator must take and subscribe an oath before an officer authorized to administer oaths, that the inventory contains a true statement of all the estate of the decedent which has come to his knowledge and possession, and particularly ct all money belonging to the decedent, and of all just claims of the decedent against the affiant. The oath must be indorsed upon or annexed to the inventory; Id., see. 1449. To make the appraisement, the court, or a judge thereof, must ap- point three disinterested persons (any two of whom may act), who are entitled to receive a reasonable compensation for their services, not to exceed five dollars per day, to be allowed by the court or judge. The appraisers must, with the inventory, file a verified account of their ser- vices and disbursements: Id., sec. 1444. Before proceeding the appraisers must subscribe an oath, to be attached to the inventory, that they wiU truly, honestly, and impartially appraise the property exhibited to them according to the best of their knowl- edge and ability. They must then proceed to estimate and appraise the property; each article must be set down separately, with the value thereof in dollars and cents, in figures, opposite to the articles respec- tively; the inventory must contain all of the estate of decedent, real and personal, a statement of all debts, partnerships, and other interests bonds, mortgages, notes, and other securities for the payment of money belonging to the decedent, specifying the name of the debtor in each security, the date, the sum originally payable, the indorsements thereon 648 New Book of Forms. (if anv), -n-ith their dates, p.nd the sum which, in the judgment of the appraisers, mav be collected on each debt, interest, or security ("the inventory must show, so far as the same can be ascertained by the executor or the administrator, what portion of the property is com- munity property, and what portion is the separate property of the decedent]: Id., sec. 1445; Alaska Codes, pt. 4, c. 82, sees. 801-808; Ari- zona, C. C, pars. 1710, 1711, 1716; Idaho, C. C. P., sees. 4104, 4105, 4110; Montana, C. C. P., sees. 2550, 2551, 2556; Nevada, Comp. Laws, se_c3. 2.S71, 2'?72, 2876; New Mexico, Comp. Laws, sees. 1944, 1966, 2021, 2022; North Dakota. Probate Code. sees. 6380-6388; Oregon, Codes and Stat- ntes, sees. 1139, 1141; South Dakota. Probate Code, sees. 138-148; Utah, Bpv. Stats., sees. 3841, 3842, 3844; Washington, Ballinger's Codes, sees. 6197, 6201, 6287; Wyoming, Eev. Stats., sees. 4680, 4681, 4685. No. 1075. — Inventory and Appraisement — Money Only. [Title of Court and Estate.] The following is a true inventory of all the estate of H. B., deceased, which has come into the possession of the undersigned executor, viz. : One thousand dollars in gold coin of the United States, one hundred and seven dollars in silver coin of the United States, ten dollars in United States legal tender notes. Total value of $1,117.00. NOTE. — The inventory must also contain an account of all moneys belonging to the decedent which have come to the hands of the execu- tor or administrator, and if none, the fact must be so stated in the in- ventory. [If the whole estate consists of money there need not be an appraisement, but an inventory must be made and returned as in other cases]: Cal., C. C. P., sec. 1446^; Alaska, Codes, pt. 4, c. 82, sees. 801-808; Arizona, C. C, nar. 1713; Idaho, C. C. P., sec. 4107; Montana, C. C. P., Bee. 2553: New Mexico, Comp. Laws, sees. 1944, 1966, 2021, 2022; North Dakota, Probate Code, sees. 6380-6388; Oregon, Codes and Statutes, sec 1140; South Dakota, Probate Code, sees. 138-148. No. 1076. — Inventory and Appraisement of Real Estate — Af- ter Sale. [Title of Court and Estate.] It appearing to the court that the appraisement of that parcel of land described in the inventory and appraisement described as follows [description], was too high: It is therefore ordered that A. B., C. D. and E. F. are appointed to reappraise said land and file their appraisement thereof within three days from the date of the order. NOTE. — If the court is satisfied that an appraisement is too high or too low it may order real estate reappraised. Frequently at a sale under a court's order real estate will not sell for ninety per cent of the appraised value. If so, the eourt may cause it to be reappraised, and after the appraisement confirm the sale reported before reappraisement. Inventory and Appraisement. 649 It may also be appraised before a sale is made: Cal., C. C. P., sec. 1550 • Alaska, Codes, pt. 4, c. 82, sees. 801-808; Arizona, C. C, par. 1790; Idaho, C. C. P., sec. 4185; Montana, C. C. P., sec. 2683; Nevada. Comp. Laws, sec. 2926; Xew Mexico, Comp. Laws, sees. 1944, 1966, 2021, 2022; North Dakota, Probate Code, sees. 6380-6.'?.S8; South Dakota. Probate Code. sec. 214; Utah, Rev. Stats., sec. 3895; Washington, Ballinger's Codes, sec. 6464; Wyoming, Eev. Stats., sec. 4792. No. 1077. — Inventory and Appraisement of Estate of Ward — Guardian. [Title of Court and Estate.] [The sa)7if form as in No. 1074 — Inventory and Appraisement of Estates of a Deceased Person.] NOTE. — It must be returned within three months after the guardian is appointed, and annually thereafter. It must be sworn to by the gunrdian and must be appraised by appraisers, appointed, sworn and acting in the manner provided for regulating the settlement of estates of decedents. Such inventory, uHth the appraisement, must be recorded by the clerk in a book kept in his office for that purpose; Cal. C. C. P., sec. 1773; Alaska, Codes, pt. 4, e. 82, sees. 801-808; Arizona, C. C, par. 1993; Idaho, C. C. P., sec. 4362; Montana, C. C. P., sec. 2985; Nevada, Comp. Laws, sec. 578; New Mexico, Comp. Laws, sees. 1944, 1966, 2021, 2022; North Dakota, Probate Code, sees. 6380-6388; Oregon, Codes and Statutes, sec. 5277; South Dakota, Probate Code, sec. 388; Utah, Rev. Stats., sees. 4010, 4011; Washington, Ballinger's Codes, sec. 6505; Wyoming, Rev! Stats., sec. 4903. No. 1078. — Inventory and Appraisement — Property Discov- ered After First Inventory. [Title of Court and Estate.] The following is a true inventory and appraisement of all the property of H. B.. deceased, which has been discovered by the undersigTied executor and which has come into the possession and knowledge of the undersigned since the date of the filing of the inventory and appraisement now on file in the said estate, viz. : [Description of the property if land or personal property other than money, and stating die amount of money precisely as in the first inventory.] NOTE. — Whenever property not mentioned in an invontory filed comes to the possession or knowledge of an executor or administrator, Le must cause the same to be appraised in the manner prescribed, and' an inventor^' returned within two months after the discovery; anil the making of such inventory may be enforced, after notice, by attachment or ronioval from ofliee: Cal., C. C. P., sec. 1451; Alaska, Codes pt 4 c. 82, sees. 801-808; Arizona, C. C, par. 1718; Idaho, a C. P,^ sec 411"' 650 New Book of Forms. Montana, C. C. P., sec. 2558; Nevada, Comp. Laws, sec. 2878; New Mexico, Comp. Laws, sees. 1944, 1966, 2021, 2022; North Dnkota, Pro- bate Code, sees. 6380-6388; Oregon, Codes and Statutes, sees. 384, 1146; South Dakota, Probate Code, sees. 138-148; Washington, Ballinger'a Codes, sees. 5698, 6209; Wyoming, Rev. Stats., sec. 4681. No. 1079. — Inventory and Appraisement — Supplemental. [Title of Court and Estate.] The undersigned appointed to make a special appraisement of the interest of said estate in the partnership formerly existing between said deceased and /. /., in the wholesale grocery store, No. i^/dj Market street, San Francisco [and so as to any other property] , report that we have performed that duty, and we value said at nine thousand two hundred dollars. We also rec- ommend that said interest be sold as soon as practicable. NOTE. — California, C. C. P., sec. 1451; Alaska, Codes, pt. 4, c. 82, sees. 801-808; Arizona, C. C, par. 1718; Idaho, C. C. P., sec. 4112; Montana, C. C. P., sec. 2552; Nevada, Comp. Laws, sec. 2878; New Mex- ico, Comp. Laws, sees. 1944, 1966, 2021, 2022; North Dakota, Probata Code, sees. 6380-6388; Oregon, Codes and Statutes, sec. 1146; South Dakota, Probate Code, sec. 1461; Washington, Ballinger's Codes, sec. 6209; Wyoming, Eev. Stats., sec. 4687. No. 1080. — Inventory and Appraisement — Bill of, by Ap- praisers. [Title of Court and Estate.] To P. H., B. B. and W. L. C, Appraisers, Dr. To compensation for services in appraising said estate, items as follows: Two days' services, at $5.00 day each ^jo 00 Necessary disbursements, as follows : Fare to lot No. 690 and return 50 $30 50 Verified. NOTE. — California, C. C. P., sec. 1444; Alaska, Codes, pt. 4, c. 82, Bees. 801-808; Arizona, C. C, par. 1711; Idaho, C. C. P., sec. 4105; Mon- tana, C. C. P., sec. 2551; Nevada, Comp. Laws, sec. 2872; New MexiVo, Comp. Laws, sees. 1944, 1966, 2021, 2022; North Dakota, Probata Code, gec^. 6380-6388; Oregon, Codes and Statutes, sec. 1141; South Dakota, PYobate Code, sec. 139; Utah, Rev. Stats., sec. 3842; Washington, Bal- linger's Codes, sec. 6202; Wyoming, Eev. Stats., sec. 4681. Judgment. 651 JUTG^MENT. No. 1 081. — Judgment — Divorce — Interlocutory. [Title of Court and Cause.] It appearing to the court that defendant, A. S. B., was duly served with summons herein and that he has failed to appear and anszver within the time allowed by law, and his default has been entered, and the cause coming on to be heard this ^d day of June, A. D. jpo6, upon the evidence on the part of the plaintiff, and the matter having been submitted for judgment, and the court hazing considered all the evidence, from which it appears that all the material allegations of the complaint are true, and such is found to be the fact, and all and singular the law and the prem- ises being by the court understood and considered. Therefore, it is hereby determined, that plaintiff, C. C. B., ought to be granted a divorce from defendant, A. S. B., and sJie is entitled to a divorce from hi}n upon the ground of extreme cruelty; she to have the custody of the child, C. S. B., until the further order of this court. Done in open court, this 6tli day of June, A. D. 1^06. NOTE. — In actions for divorce the court f.les its decision and con- clusion of law. If divorce is denied, final judgment is immediately en- tered. If divorce ought to be granted, his interlocutory judgment is entered declaring that the prevailing party is entitled to a divorce. Appeal may then be taken, within six months after the interlocutory judgment is ex-.tcred, in the same manner and with like effect as if the .judgment were final. If appeal is not taken final judgment is en- tered at the expiration of one year from the entry aforesaid: GaL, C C, sees. 131, 132. No. i.'^Sa. — Judgment — Divorce — FinaL [Title of Court and Cause.] It appearing to the court that defendant, A. B. C, was duly served with summons herein \the same as in the interlocutory judgment], and the cause coming on to be heard this jrf day of June, iQOj, and [the same as in the interlocutory judg}nent], from which it appears that all the material allegations of the complaint are true, and [the same as in the interlocutory judg- ment] and all and singular the law and the premises being by the court understood and considered. Wherefore, it is hereby ordered, adjudged, and decreed that the marriage between tlie plaintiff, E. F, G., and the defendant. 652 New BCOK OF FCRMS. A. B. C, be dissolved, and the same is hereby dissolved upon the ground, of extreme cruelty inflicted by the said A. B. C. upon the said E. F. G., and the said parties are after the entry of this decree each restored to the status of single persons. Done in open court, this 5th day of August, A. D. 1906 I hereby certify that the decree of which the within is a true copy v/as entered in book "A. B." of Divorcss, on the 29th day of July, 1904. NOTE.— California, C. C, sees. 131, 132. No. 1083. — Judgment — Divorce — Final (Another Form). [Title of Court and Cause.] Whereas, on the 6th day of June, A. D. igo6, this court made its interlocutory judgment, finding that the plaintiff, C. S. B., ought to be granted a divorce from defendant, A. S. B.; and zvhereas it appears that said interlocutory judgment was entered on the 8th day of June, ipo6; and now, one year having expired since the entry of said interlocutory j-idgment, and it appearing to the court that there is no reason why said interlocutory judg- ment should not become final; and all and singular, the law and the facts, being by this court understood and considered — Jt is hereby ordered, adjudged and decreed, that the marriage between the plaintiff, C. S. B., and the defendant, A. S. B., be dissolved, and the same is hereby dissolved upon the ground of extreme cruelty, and the said parties are after the entry of this decree each restored to the status of single persons. Done in open court, this loth day of J%ne, A. D. i^O^. NCTE. — California, C. C, &2cs. 1?1, 132. No. 10S4. — Judgment — Dcnfession [Title of Court and Cause.] I, R. R., of Oroville, county of Butte, state of California, do hereby confess judgment herein in favor of /. D. of Quincy, county of Plumas, state of California, for the sum of $6§o, geld coin of the United States, and authorize judgment to be entered therefor against me, with legal interest thereon from this date. This confession of judgment is for a debt justly due and owing to the said /. D., arising upon the following facts, to wit: At various times betiucen the twentieth day of September, i()o6, and the^Hfteenth day of September, ipo6, I received for the use and benefit of the said J. D., and from one J. S., divers sums of money, gold coin of the United States, amounting in the ag- gregate to said sum of $6f^o, no part of ii'hich has ever been paid to said J. D., and it is nozv due. Judgment. OJ State of California, County of Butte, — ss. R. R., being duly sworn, says that he is the person who sij^ned the above statement, and that he is indebted to the said /. D. in the sum of $630, gold coin of the United States, in said state- ment mentioned ; that there are no offsets to the same, and that the facts stated in the above confession and statement are true. NOTE. — A judgment by confession may be entered without action either for iiioncy due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the man- ner prescribed by this chapter. Such judgment may be entered in any court having jurisdiction for like amounts. 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 sura; 2. If it be for money due, or to become due, it must state concisely the facts out of which it arose, and show that the sum confessed there- for is justly due, or to become due; 3. If it be for the purpose of securing the plaintiff against a contin- gent liability, it must state concisely the facts constituting the liabil- ity, and show that the sum confessed therefor does not exceed the same: Cal., C. C. P., sees. 1132, 1133; Alaska, Codes, pt. 4, c. 21, sees. 241- 247; Arizona, C. C, par. 1437; Idaho, C. C. P., sec. 3957; Montana, C. C. P., sees. 2040-2043; Nevada, Com p. Laws, sees. 3454-3456; New Mex- ico, Comp. Laws, sees. 3077-3084; North Dakota, C. C. P., sec. 6130; • Oregon, Codes and Statutes, sees. 186-192, 199-201; South Dakota c' ' C. P., sees. 309, 7S4-7SG; Utah, Rev. Stats., sees. 3213-3215; Wasliinpton, ' Ballinger's Codes, sees. 5094, 5095, 5099: Wyoming, Bev. Stata.. 'sees ' 3617, 3763, 3764. No. 1085. — Judgment — Entry of Confession of. [Title of Court and Cause.] In this, R. R., having- filed his confession cf j-jogment, wherein he authorizes and consents that judgment te entered in favor of /. D., for the sum cf $630, geld coin of the United States; there- fore, by reason of the hw and the premises aforesaid, it is or- dered and adjudged, that the said /. D. do have and recover of and from the said R. R. the sum of $630, gold coin of the United States, with interest thereon, at the rate of set'en per cent per annum, from the date hereof until paid, together with the sum of ten dollars costs herein. NOTE.— California, C. C, P., sec 1133. See "Confession of Judg- ment." ^ No. 1086. — Judgment by Court. [Title of Court and Cause.] This cause C3.me on regularly for trial on the nineteenth day of October, ipod, J. B., Esq., appearing as counsel for plaintiff. 654 New Book of Forms. and C. T., Esq., for the defendant. A trial by jury having been ■waived by the parties, the cause was tried before the court with- out a jury, whereupon witnesses on the part of plaintiff and de- fendant were duly sworn and examined, and documentary evi- dence introduced by respective parties, and the evidence being dosed, the cause was submitted to the court for consideration and decision; and, after deliberation thereon, the court files its- finding and decision in writing, and orders that judgrnent be en- tered herein in favor of plaintiff in accordance therewith. Wherefore, bv reason of the law and the finding aforesaid, it is ordered, adjudged and decreed, that /. D., the plaintiff, do have and recover, of and from R. R., the defendant, the sum of $800, with interest thereon at the rate of seven per cent per annum from the date hereof until paid, together with said plaintiff's costs and disbursements incurred in this action, amounting to the sum of thirty-five dollars. Judgment recorded October 24, igo6, in book "B" page 67. NOTE.— Calilornia, C. C. P., sees. 664, 668. No. 1087. — Judgment — Default— Clerk. [Title of Court and Cause.] In this action the defendant, R. R., having been regiilarly served with process, and having failed to appear and answer the plaintiff's complaint filed herein, the legal time for answering having expired, and no answer or demurrer having been filed, the default of the said defendant, R. R., in the premises having been duly entered according to law; upon application of said plaintiff to the clerk, and in pursuance of the prayer of said com- plaint, it is ordered and adjudged that the said plaintiff do have and recover from the said defendant judgment for the sum of $560, gold coin of the United States, with interest thereon at the rate of seven per cent per annum from the date hereof, till paid, together with said plaintiff's costs and disbursements incurred in this action, amounting to the sum of $46. Judgment rendered April 26, i(po6. Clerk's Office of the Superior Court Of the State of California, County of Santa Barbara, — ss, T, the undersigned, clerk of said court, do hereby certify the foregoing to be a full, true, and correct copy of the judgment entered in the above-entitled action, and of the whole thereof. ■ Attest my hand and the seal of said court, this twenty-sixth day of April, 1906. -iJKj^-E.. — Judgment may be had, if the defendant fail to answer the complaint: 1. In an action arising upon contract for the recovery of money, if no answer has been filed in time, the clerk, upon application Judgment. 655 of the plaintiff, mnst enter the defanlt of the defendant, and immedi- ately enter judgment for the amoiiiit specified in the summons, and costs. 2. Id other actions, if no answer has been filed within the time the clerk must enter the default; and thereafter the plaintiff may apply at any time to the court for the relief demanded. If the taking of an acconnt, or the proof of any fact, is necessary, the court may taka the account or hear the proof; or may order a reference for that pur- pose. And where the action is for the recovery of damages, the court may order the damages to be assessed by a jury; or, if to determine the amount of damages, the examination of a long account be involved, by a reference as above provided. .*?. In actions where the service of the ffummons was by publication, the plaintiff may, upon proof of the publication, and that no answer haa been filed, apply for judgment* and the court mnst thereupon require proof to be made of the demand; and if the defendant be not a resident of the state must require the plaintiff, or his agent, to be examined on oath, respecting any payments that have been made to the plaintiff, or to anyone for his use, "on ac- count of such demand, and may render judgment: Cal., C. C. P., sec. 585; Alaska, Codes, pt. 4, c. 2.51-259; Ari/.ona, C. C, pars. 14.35-1441; Idaho, C. C. P., sec 3501; Montana, C. C. P., sec. 1020; Nevada, Comp! Laws, sec. 3247; New Mexico, Comp. Lnws, sees. 2f),S5-.30r)8; North Dakota, C. C P., sees. 5412-5414; Oregon, Codes find Stntutes sec 185- South Dakota, C. C. P.. sees. 2.37, 238; Utah, Eev. Stats., "sec 3179; "Wyoming, Eev. Stats., sees. 3761-3766, No. io88. — Judgment — Default — Court. [Title of Court and Cause.] ^ In this action the defendant, R. R., having^ been served with process, and bavins^ failed to appear and answer the plaintiff's complaint filed herein, and the time for answerins: havin£^ ex- pired, and no answer or demurrer having^ been filed, the default of said defendant, R. R., in the premises having been duly en- tered according to law; Now. at this day. on application of /. }f. W., attorney for said plaintiff, it is hereby ordered that judgment be entered herein against the said defendant, R. R., as zuell as a^^oiust defendant J. S., not scn'ed zvith process, in accordance with the praver of said plaintiff's complaint on file herein. Wherefore, by reason of the law and the premises aforesaid, it is ordered, adjudged, and decreed that /. D., plaintiff, do have and recover of and from the said defendant, R. R., the sum of $560, United States o^old coin, with interest thereon at the rate of seven per cent per annum from the date hereof until paid : to- gether with said plaintiff's costs and disbursements incurred in said action, amounting to the sum of $48. y^. And it is further ordered, adjudged and decreed, that said plaintiff do have execution against the separate property of the defendant. R. R., as well as against the joint property of all the said defendants. Judgment rendered June iS, ipo6. 656 New Book of Forms. NOTE. — This form of jndgraent is against persons associate. Bees. 833, 838. . No. 1097. — Affidavit — Attachment Against Resident. [Title of Court and Cause.] State of California, County of Los Angeles, — ss. H. A. S., being duly sworn, says that he is the plaintiff in the above-entitled action ; that the defendant, S. A. H., in said action, is indebted to the plaintiff in tlie sum of oyt£ hundred dollars, gold 66o New Book oi^ Forms. coin of the United States, over and above all legal setoffs, or counterclaims, upon an express contract for the direct payment of money, to wit: On a certain promissory note for one hundred dollars, bearing date January 12, igoj, payable thirty days after date, without grace. And that such contract was made and is payable in this state, and tlie payment of the same has not been secured by any mort- gage or lien upon real or personal property, or any pledge of per- sonal property; and that the said attachment is not sought, and the said action is not prosecuted to hinder, delay, or defraud any creditor of the defendant. NOTE. — California, C. C. P^ sees. 538, 866. No. 1 098. — Affidavit — Justice — Witness. [Title of Court and Cause.] State of California, County of Butte, — ss. A. G. L., the defendant in the above-entitled action, being duly sworn, says that M. A., Esq., the justice of the peace for San Mateo township, in said county, who issued the order of arrest herein, is a material witness for defendant herein ; that he expects to prove by said M. A., Esq., that the plaintiff herein, previous to the making of said order of arrest, while being examined as a witness m the case of A. B. v. C. D., then on trial before the said M. A., Esq., justice of the peace, testified that he knew this de- fendant was about to leave the state of California, by the way of Panama, for the purpose of proceeding to Washington, D. C, to secure a patent on a double-scouring, complex soaping and am- moniacal sidphurated, bleaching, long-handled washing machine; and that the plaintiff was the patentee of a rival machine for ac- complishing the same purpose, and that he intended to do his best to keep defendant away from said city of Washington. NOTE.— California, C. C. P., sees. 833-838. No. I egg. — Affidavit — Change of Place of Trial — Bias or Prejudice of Citizens. [Title of Court and Cause.] State of California, County of Butte, — ss. /. B., being duly sworn {as in the preceding] : That a jury trial has been demanded by the plaintiff in this action ; that he believes Justice's Court. 66i that he cannot have a fair and impartial trial in the township and court before which the summons herein is made returnable, on account of the bias and prejudice of the citizens of said town- ship against him. NOTE,— California, C. C. P., sees. 833-838. No. 1100. — Affidavit — Change of Place of Trial — Justice a Witness. [Title of Court and Cause.] State of California, County of Butte, — ss. J. B., being duly sworn, says: That he is the defendant in the above-entitled action ; that S. C, the justice of the peace before whom the summons herein is made returnable, will be a material witness for the defendant herein at the trial of said action ; that this action is one founded on a promissory note made by defend- ant and payable to plaintiff ; that the only defense to said action is part payment of said note by defendant; that defendant ex- pects to prove by the said S. C, that he, the said S. C, saw de- fendant pay plaintiff the sum of one hundred dollars, after said note zras due, and heard him direct plaintiff to apply said pay- ment on said note, and heard plaintiff promise defendant that he would apply said payment as directed ; that no other person except plaintiff, defendant, and said S. C, was present when said pay- ment TC'oy made, and defendant is informed and believes, and therefore avers, that plaintiff disputes said payment, NOTE.— California, C. C. P., sees. 833-838. No. iioi. — Affidavit — Set Aside Default, [Title of Court and Cause.] State of California, County of Butte, — ss. A. B. C, the defendant herein, deposes and says: That he is the defendant herein ; that the summons in this action was served on him on the third day of June, iqoj : that on the day on which he should appear as commanded by said summons he did appear as commanded, and offered to make answer to the complaint herein; that he was then informed by A. L., Esq., the justice of the peace presiding in said court, that judgment by default had been entered against him on the previous day, and for that rea- son he was prevented for answering therein [that he has fully and fairly stated the case in this cause to A. IV., his counsel, who 662 New Book of Forms. resides at Black town, county of Butte, and after such statement he is advised by him that he has a good and substantial defense on the merits of this action, and verily believes the same to be true'.] NOTE.— California, C. C. P., sec. 859. No. 1 102. — Affidavit — Continuance, [Title of Court and Cause.] State of California, County of Butte, — ss. A. B., being- duly sworn, says: That he is the defendant in the above-entitled action; that he cannot safely go to trial before ninety days from the date hereof, on account of the absence of A. L., who is a material witness for defendant; that a subpoena, in said cause was duly issued on the first day of March, i^oy, and placed in the hands of the constable of said township for service on the same day ; that on the second day of said month of March, the said subpoena was by said constable duly served on the said A. L., in said township; that said subpoena commanded the said A. L. to be present in this court at the hour of ten o'clock A. M. of this day, to testify on behalf of defendant; that after said subpoena was served the said A. L. was taken violently sick, and was removed from said county, and is now at Coronado Beach in the county of San Diego, in said state, and is too sick to submit to examination by deposition; that the evidence of the said A. L. is material for defendant's defense; that he will prove by said wit- ness that [here state the facts the witness will testify to]. And defendant says that the said facts cannot, to his knowledge, be proved by any other witness ; and that the application is not made for delay, but' that justice may be done in the premises, and affiant believes that, if this case be continued for three months, he will be able to have said witness present to testify as aforesaid. Tyj-Q-pE jn certain contingencies, as indicated in this form and in other cases, the trial may be postponed upon affidavit showing good cause: Cal., C. C. P., sec. 876. No. 1 103. — Affidavit^earch-warrant for. [Title of Court and Cause.] State of California, County of Sacramento, — ss. Personally appears before me this sd day of June, A. D. 1906, A. B., who, on oath, makes complaint, and deposes and says : That Justice's Court. 663 on the 2d day of June, A. D., 1906, in the county of Sacramento, state of California, the crime of grand larceny was committed, to wit, by C. D. (whose real name is unknown to this complainant), who then and there did unlawfully and feloniously steal, take and carry away from a dwelling-house, in the city of Sacramento, county of Sacramento, located on K street, betzveen 6th and jth streets, and knozvn as number Sgy K street, one gold ring, hav- ing a diamond of yellozvish tinge or shade, weighing about one caret. The ring represents a serpent with its taU in its mouth; the diamond was set in the heed, of the value of three hundred dollars, and of the personal goods and property of A. B., who ozvns and resides in the aforesaid house. And this deponent further deposes and says: That he has and there is just, probable and reasonable cause to believe, and that he does believe, that said personal goods and property are now concealed in the house of L. M., at number p Army street, in said city, knozvn as the "Palace"; all of which is contrary to the form, force and effect of the statute in such cases made and provided, and against the ]^eace and dignity of the people of the state of California. And this complainant prays that a search-warrant may issue for the recovery of said personal goods and property, and that the same may be brought before a magistrate, and dis- posed of according to law. NOTE.— California, C. C. P., sec. 1525. No. 1 104. — Affidavit — Search-warrant — Deposition on De- mand for. [Title of Court and Cause.] State of California, County of Sacramento. — ss. A. B., being duly sworn and examined upon oath, testifies and says: That he knows the contents of the complaint and affidavit on the other side of this document, that on the 2d day of June, A. D. /pod, in the county of Sacramento, the property described in said complaint was feloniously taken and carried away ; that the taking was not under claim of right, and said property was then of the value of three hundred dollars, and the personal prop- erty of A. B., that said property was taken without the consent of said owner; that there is just, probable and reasonable cause to believe, and that he does believe, that said property is now con- cealed in the house of L. M., the house described in said affidavit, to zi'it, the "Palace" ; that the charge and facts set forth in said complaint and affidavit are true to the best of his knowledge and belief. 664 New Book of Forms. NOTE.— California, C. C. P., sees. 1525, 1526. The above is the pre- liminary deposition taken at the time the application is made to the magistrate for a warrant. If, when said application is made any in- terested person opposes the application the magistrate must proceed to take the deposition of the witness by question and atiswer as directed in Id., sec. 1539. No. 1 105. — Affidavit — Substitution of Party. [Title of Court and Cause.] State of California, County of Butte, — ss. /. M., being duly sworn, says: That he is defendant in the above-entitled action [and has been served with summons therein, but has not answered] ; that said action is prosecuted against de- fendant to recover from him a grey stallion known as "H. L. B." ; that one H. N., not a party to said action, claims to own said stallion and to be entitled to his possession, and he makes said claim without any collusion, but in good faith ; and he has, since said action was commenced, demanded said stallion of defendant ; that affiant has no interest in said stallion or in the results of said action. Wherefore, affiant prays for an order substituting said H. N. as defendant herein in place of affiant, and to discharge affiant from liability to either party in the action. NOTE.— California, C. C. P., sees. 336, 338. No. 1 1 06. — Affidavit — Redemptioner. fTitle of Court and Cause.] State of California, County of Butte, — ss. A. B. C, being sworn, says: That he is the owner [or agent of the owner] of the mortgage, a copy of which, with the certificate of the recorder of the county of Butte is hereto attached, and marked Exhibit "A" ; that the sum of three hundred and seventy- two dollars and fifty cents is at the date hereof actually due to affiant from the maker thereof on said mortgage lien. NOTE. — California, C C. P., sec. 705. Justice's Court. 665 No. 1 107. — Action, Application to Join in. [Title of Court and Cause.] State of California, County of Butte, — ss. /. A., being duly sworn, says : That he is the owner with plain- tiff of an undivided one-half interest in the wagon described in the complaint herein ; that plaintiff and affiant purchased said wagon as partners, and that the person from whom they pur- chased it neglected to insert affiant's name in the bill of sale of said property, but inserted plaintiff's name only ; and affiant is in- formed and believes, and therefore avers, that he is a proper party plaintiff herein, and he therefore prays that he may be permitted to join in this action as a party plaintiff. NOTE.— California, C. a P., sec 377. No. 1 1 08. — Attachment — D ef aulters, [Title of Court and Cause.] The People of the State of California to the Sheriff or any Con- stable of said County, Greeting: You are hereby commanded forthwith to attach the body of /. C, defaulting juror, and have him before our said court, on the tzventy-ninth day of January, ipo/', at ten o'clock A. M., then and there to show cause why he should not be punished for contempt in disobeying the order summoning him to appear and serve as a juror in said court. NOTE. — Califoraia, C. C. P., sec. 238, No. nog. — Complaint — Goods Sold and Delivered — Justice's Court. [Title of Court and Cause.] The plaintiff complains of defendant and alleges : That at vari- ous times between the I2tl! day of October, 18/8, at the town <>f San Bernardino, the defendant, A. McC, purchased merchanciis.,' of the mercantile firm of L. A. & Co., of the value and for which she agreed to pay the sum of $242.29 on delivery to her; that the said merchandise was delivered to her at various times between the I2th day of October, i8j8, and March, iSjg, that L. A. & Co. assigned the said claim to the plaintiff; that after the delivery of the merchandise A. married her codefendant. D. McC, and judgment is demanded against A. Mc. and D. McC. for $242.29 and costs. 666 New Book of Forms. NOTE. — This case came before the supreme court and it was con- tended that because the complaint did not aver that the goods were sold and delivered at the request of the defendants, or either of them, or that they, or either of them, were indebted to plaintiff therefor, that the justice 's court had no jurisdiction of the action. The complaint was sustained upon the ground that it contained a sufficient statement of facts to constitute a cause of action in a jus- tice's court; that a complaint is sufficient in a justice's court "if it shows the value of the claim asserted by the plaintiff in such a way that a person of common understanding may know what is intended." Such a complaint is good until appealed from and reversed because it was rendered by a court having jurisdiction of the subject matter and the parties: Aucker v. McCoy, 56 CaL 524. No. mo. — Complaint — Rent of Land. The Santa Barbara Gas Co., To M. A. L. To balance due for rent of land $250 (Indorsed:) Filed October 20th, i8/p. R. D. S., Justice of the Peace. NOTE. — This complaint was upheld, in the absence of a special de- murrer. By going to trial without complaint all defects were eoredi La;aillade v. Santa Barbara Gas Co., 58 Cal. 4. No. Ill I. — Complaint — Promissory Note $150.00. Forest Hill, January loth, 18/5. For value received, I promise to pay to /. McD., the sum of $150, sixty days after the date of this note, at three per cent per month until paid. /. R. (Indorsed:) For value received, I hereby transfer the within note to /. C. B. J. McD. (Indorsed:) Pay to /. H. or order. /. C. B. NOTE. — This complaint was upheld: Hamilton v. McDonald, 18 Cal. 128. In sustaining the complaint referred to in note to Form No. 1109 the court said it was sufficient in the absence of special demurrer, and that intimation destroys the value of Form No. 1111 as a precedent. It is of the greatest importance that complaints in justices' courts should be in form sufficient to sustain a judgment in any court. By j.ot being reasonably precise, thought, care, and time are saved, but if the proceedings are attacked as they may well be, the probable con- sequences may be very annoying and expensive. JUSTlCli's COLKT. C67 No. 1 1 12. — Complaint — Criminal — Indorsement on. [Title of Court and Cause.] [Indorsement on the back of a complaint, which may be made when additional depositions are deemed necessary] as follows: City and County of San Francisco — ss. A. B., being duly sworn and examined, upon oath, testifies and says, that he knows the contents of the coniplaint on the other side of this document; that on the first day of August, 190/, in this city and county, the property described in said complaint zvas feloniously taken and carried atvay; that the taking was not under claim of right, and said property was then of the ralue of one hun- dred dollars, and was the said J. J.'s personal property ; that said property was taken against his (the said J. J.'s) will and by force from his person; that J. G., the accused in said complaint, did then and there take the said property with violence from the per- son of the said J. J. NOTE. — When a complaint (information) is laid before a magistrate of the commission of a public offense, triable within the county, he must examine on oath the informant or prosecutor and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them. The deposition must state the facts constituting the offense. In California justices of the supreme court, judges of the superior courts, and justices of the peace are magistrates. A magistrate does not try a defendant and punish him, if guilty; he inquires into the facts constituting the alleged of- fense, and, if the facts warrant, he commits him for trial before a court having jurisdiction: Cal., Pen. Code, sec. 806. No. 1 1 13. — Complaint — Deposition, [Title of Court and Cause.] State of California, County of Sacramento, — ss. Now comes /. E. who, being duly sworn, deposes and says, that on the tzventy-fourth day of May, A. D. IQO/, in the county of Sacramento, state of California, the crime of burglary was com- mitted. State of California, County of Sacramento, — ss. /. B., being duly sworn and examined, upon oath, deposes and says, as follows: 668 New Book of Forms. Question — State the facts upon which you base the forej^oing charge. Answer — Stating the facts [not on information or belief, but positively]. NOTK— California, Pen. C^ sees. 701, 702, 806-811, No. 1 1 14. — Complaint — Criminal Procedure — Robbery. [Title of Court and Cause.] State of California, County of Marin, — ss. Personally appears before me, this seventh day of Au^^usf. A. D. iQoy, J. J., who, on oath, makes complaint, and deposes and says, that on the first day of August, A. D. igoj, in the county of Marin, state of California, the crime of robbery was committed, to wit, by /. C, who then and there did feloniouslv and with force and arms make an assault upon said J. J., and with violence to his person, and against his will, did then and there feloniously and violently steal, take and carry away by force from the person of the said /. /., one gold zvatch of the value of one hundred dollars, and of the personal property of said /. /., all of which is contrary to the form, force, and effect of the statute in such cases made and provided, and against the peace and dignity of the people of the state of California. And this complainant, upon oath, accuses the said /. G. of having committed the said crime ; and this complain- ant further alleges and deposes that the said accused was arrested therefor. ?nd prays that the said accused may be brought before a magistrate and dealt with according to law. No, 1 1 15. — Complaint — Forgery. [Title of Court and Cause.] State of California, County of Alameda, — ss. Personally appears before me, this twelfth day of May, A. D. igoy, W. F., who, on oath, makes complaint, and deposes and says, that on the fourteenth day of April, A. D. ipo/, in the county of Alameda, state of California, the crime of forgery was com- mitted, to wit, by P. B. (whose real name is unknown to this complainant), who then and there did willfully, unlawfully, fe- loniously, and fraudulently make and forge a certain promissory note, in the zvords and figures follozving, to wit [describe the of- fense], and then and there, well knowing the same to be false and forged, did then and there willfully and unlawfully, feloniouslv and fraudulently, utter, publish and pass the same as genuine and Justice's Court. 669 true to W. F., the said complainant, all with intent then and there to prejudice, damage, and defraud said IV. F., contrary, etc. [as in No. 11 14]. And this complainant, upon oath, accuses the said P. B. of having committed the said crime ; and this com- plainant further alleges and deposes that the said accused was then and there arrested therefor in the actual commission of the said offense, and prays that the said accused may be brought be- fore a magistrate and dealt with according to law. No. 1 1 16. — Complaint — Assault — Deadly Weapon, [Title of Court and Cause.] State of California, County of Sierra, — ss. Personally appears before me, this tzvcnty-third day of May, A. D. jpo/, C. IV., who, on oath, makes complaint, and deposes and says, that on the third day of May, A. D. Jgoj, in the county of Sierra, state of California, the crime of assault upon the per- son of another with a deadly weapon, with intent to do bodily harm, and without just cause or excuse, and when no considerable provocation appears, was committed, to wit, by /. B. (whose real name is unknown to this deponent), who then and there did will- fully, unlawfully, and feloniously, and with force and arms, with- out just cause or excuse make an assault upon C. W. wath a deadly weapon, to wit, a Winchester rifle, and did then and there, with an intent to do bodily harm to and upon the person of said C. IV., there being no considerable provocation therefor, contrary, etc. [as in No. 1 114]. No. 1 1 17. — Complaint — Assault to Murder. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me this third day of July, A. D. 190J, J. H., who, on oath, makes complaint, and deposes and says that on the first day of July, A. D. igoj, in the county of Placer, state of California, the crime of an assault with an intent to commit murder was committed, to wit, by /. A', (whose real name is un- known to this complainant), who then and there did unlawfully, feloniously, willfully, and with malice aforethought, make an as- sault upon /. H. with a deadly weapon, to wit. a shotgun, and did then and there make said assault ; and all with an intent felon- iously, willfully, and unlawfully, and with malice aforethought, to kill and murder said J. H.; all of which is contrary, etc. [as in No. 1 114]. 670 New Book of Forms No. 1 1 18. — Complaint — Receiving Stolen Goods. [Title of Court and Cause.] State of California, County of El Dorado, — ss. Personally appears before me this third day of May, A. D. rgxr;, P. P., who, on oath, makes complaint, and deposes and says that on the thirtieth day of April, A. D. iQoy, in the county of HI Dorado, state of California, the crime of felony was committed, 10 wit, by /. /. (whose real name is unknown to this complainant), as follows, to wit, that on the thirtieth day of Aprii, A. D. IQ07, at said county, one /. B. (whose real name is unknown to this complainant), did willfully, unlawfully, and feloniously steal, take, and carry away a diamond ring, of the value of one hundred dollars, of the personal property of /. G. (whose real name is un- known to this complainant), and that thereafter, to wit, on the said thirtieth day of April, A. D. ipoy, at said county, the said /. /. did willfully, unlawfully, knowingly, feloniously, and for his own gain, and to prevent the owner, the said /. G., from again possessing his said personal property, buy and receive from said J. B. the said diamond ring, and the said /. /. then and there. v:e\\ knowing the same to have been stolen, as aforesaid stated; all of which is contrary, etc. [as in No. 1114]- No. 1 1 19. — Complaint — Burglary — First Degree. [Title of Court and Cause.] State of California, County of Tulare, — ss. Personally appears before me this fourteenth day of June, A. D. 7907, /. B., who. on oath, makes complaint and deposes and says, that on the thirtieth day of May, A. D. 7907, in the county of Tulare, state of California, the crime of burglary of the first de- gree was committed, to wit, by C. B., who then and there, in the night-time of said day, did feloniously, forcibly and burglariously break and enter the house, room, shop, Vv^arehouse, store, and building of W. C. there situate, with intent to commit grand lar- ceny, and did there and then feloniously and burglariously steal, take, and carry away one gold zvatcli of the value of two hundred dolbrs, and of the personal property of IV. C, contrary, etc. [as in No. II 1 4]. Justice's Court. 671 No. 1 120. — Complaint — Search-warrant — Larceny. [Title of Court and Cause.] State of California, County ot Alameda, — ss. Personally appears before me this third day of April, A. D. jpo/, C. II. J who, on oath, makes complaint, and deposes and says, that on the eighteenth day of March, A. D. 1^0/, in tlie county of Alameda, state of California, the crime of grand larceny was com- mitted, to wit, by J . F. (whose real name is unknown to this com- plainant), who then and there did unlawfully and feloniousi}- steal, take and carry away one gold hunting-case watch. No. 182/, made by the Judson Manufacturing Company, Alameda county, California, of the value of one hundred dollars, and of the per- sonal goods and property of C. H. And this deponent further de- poses and says that he has, and there is, just, probable, and reason- able cause to believe, and that he does believe, that said personal goods and property are now concealed in the house of S. J., 324^ Claymore street, between Bvalina and Evangelina streets, in said county, all of which is contrary to the form, force, and effect of the statute in such cases made and provided, and against the peace and dignity of the people of the state of California. And this complainant prays that a search-warrant may issue for the recovery of said personal goods and property and that the same may be brought before a magistrate, and disposed of according to law. NOTE.— California, Pen. C, sec. 1525. No. 1 1 2 1 . — Complaint — Misdemeanor — Gambling. [Title of Court and Cause.] State of California, City atid County of San Francisco, — ss. Personally appears before me this third day of August, A. D. igoj, C. W ., who, on oath, makes complaint, and deposes and says, that on the first day of August, A. D. ipo/, in the city and county of San Francisco, state of California, the crime of misde- meanor was committed, to wit, by J. R. (whose real name is un- known to this complainant), who then and there did willfully and unlazvfully, open, deal, play, carry on, and conduct a certain bank- ing game, to zrit, the banking game of faro, then and there played with cards, and for money, and for checks as representatives of value, contrary to the form, force, and effect of the statute in such 672 New Book of Forms. cases made and provided, and against the peace and dignity of the people of the state of California; and this complainant, upon oath, accuses the said /. R. of having committed the said crime ; and this complainant further alleges and deposes that the said accused was then and there arrested therefor in the actual commission of the said offense, and prays that the said accused may be brought before a magistrate, and dealt with according to law. NOTE. — If an offense is committed not a felony, of which a justice of the peace has jurisdiction to try and determine, a complaint in writ- ing is laid before him; he then, when the case is ready for trial, exam- ines witnesses in the usual manner of trial courts: Cal., Pen. Code, sec 1426. No. 1 1 22. — Complaint — Possession of Gambling Tools. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me this fourteenth day of May, A. D. 190J, J. W., who, on oath, makes complaint, and deposes and says, that on the iirst day of May, A. D. ipoy, in the city and county of San Francisco, J. G. had in his possession one faro-box and spring, with thumb-lever attachment, and one case-keeper, which are now in the possession of /. G. (whose real name is unknown to this complainant), in a certain house and on certain premises there situate, occupied by and under the control of said /. G., to wit, 42P Adeline street, between Bmeline and Evangeline streets, in this city and county of San Francisco, with intent there to use the same as the means of committing a public offense, to wit, the offense of opening, deeding, playing, and carrying on the hanking game of faro for money, all of which is contrary, etc. [as in No. 11 14]. NOTE. — San Francisco Greneral Orders (Ordinances), sec. 37. No. 1 123. — Complaint — Visiting Gambling-house. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me this fourth day of May, A. D. jpoy, C. P., who, on oath, makes complaint, and deposes and says that on the first day of May, A. D. igoj, in the city and Justice's Court. 673 county of San Francisco, state of California, the crime of misde- meanor was committed, to wit, by /. H. (whose real name is un- known to this complainant), who then and there did willfully and unlawfully become and was a znsitor to a certain house and place for the practice of gambling there situate, and in that portion of said city and county of San Francisco bounded by Larkin, Market, Church, Eighteenth, and Channel streets and the Water Front, thereby znolating the proznsi-ons of section jj, order No. I5^7> of the board of supervisors of said city and county of San Francisco, contrary to, etc. [as in No. 1114]. NOTE.— San Francisco Gen. Orders, ed, 1898, sees. 42, 43, p. 42. No. 1124. — Complaint — Vulgar Language. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me this fifteenth day of July, A. D. iQoy, M. M., who, on oath, makes complaint, and deposes and says, that on the thirteenth day of June, A. D. 190J, in the city and county of San Francisco, state of California, the crime of mis- demeanor was committed, to wit, by C. C. (whose real name is unknown to this complainant), who then and there did willfully and unlawfully address to this complainant, and utter and speak vulgar and profane and obscene language and words, and lan- guage and words having a tendency to create a breach of the peace, in the presence and hearing of two or more persons, thereby violating the provisions of section 28, order No. 1587, of the board of supervisors, of said city and county; and the language and words then and there uttered by said C. C were; "You are a d d lacy, miserable," etc., contrary, etc. [as in No. 1114]. No. 1 125. — Complaint — Obstructing Railroad. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this si.rtccnth day of June, A. D. iQoy, J. S., who, on oath, makes complaint, and deposes and says, that on the second day of June, A. D. 190J, in the city and county of San Francisco, state of California, the crime of mis- demeanor was committed, to wit. by H. H. (whose real name is unknown to this complainant), who then and there did willfully New Forms — 13 6/4 New Book of Forms. and unlawfully obstruct a certain railroad car then and there be- longing to the Kerosene Railroad Company, a corporation, then and there existing under and by virtue of the laws of the state of California, to wit, did then and there willfully, unlawfully, and while said car was in motion and driving in and along and upon Harrison street, in said city and county, put and place a certain tin can in and upon, along and across, the track upon which said railroad car was then and there so driven upon said Harrison street as aforesaid, and did then and there willfully and unlawfully stop, delay, hinder, and obstruct said railroad car in its passage in and upon and along said Harrison street as aforesaid, and did then and there willfidly and unlazvfully, in said manner, and by said means aforesaid, obstruct a certain railroad, said railroad being then and there the riglit and franchise granted to the Kerosene Railroad Company, thereby violating the provisions of sections i and 45, chapter lo, order No. /j, of the board of supervisors of said city and county of San Francisco, as amended by order No. 7 of said board, all of which is contrary, etc. [as in No. 1114]. No. 1126. — Complaint — Refusing to "Move on." [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this nineteenth day of July, A. D. igoj, P. W ., who, on oath, makes complaint and deposes and says, that on the third day of July, A. D. igoy, in the city and county of San Francisco, state of California, the crime of misdemeanor was committed, to wit, by /. F. (whose real name is unknown to this complainant), as follows: that is to say, that then and there the free passage of a public street, and the public sidewalk thereof, to wit, Baxter street, between Broadway and Bunyan streets, was obstructed by a crowd, it then and there not being an occasion of a public meeting; that said /. F. was then and there one of the persons composing said crowd; that this deponent was then and there and still is a police officer of the said city and county ; that this deponent as said police officer, did then and there request and direct said J. F. and the persons composing said crozud to disperse and move on, and said J. F. did then and there willfully, unlaw- fully and knowingly refuse to move on and disperse when directed so to do by said police officer, as aforesaid, thereby violating the provisions of section 26, order No. 158/, of the board of super- visors of said city and county of San Francisco, as amended by order //p^ of said board, all of which is contrary, etc. [as in No. JJ14]. Justice's Court. 675 No. 1 127. — Complaint — Rubbish, Street, Depositing. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this second day of May, A. D. JQoy, J. E., who deposes and says, that on the thirtieth day of April, A. D. 190J, in said city and county, the crime of misde- meanor was committed, to wit, by C. F. (real name unknown), who then and there did unlawfully deposit on Market street a cartload of sand, within the limits of the said city and county of San Francisco, and not within that tract of land lying and being within the boundary of the said city and county of San Francisco, and described as follows: [Description of Place.] Thereby violat- ing the provisions of section 2, order No. 1587, of the board of supervisors of said city and coimty of San Francisco, all of which is contrary, etc. [cw in No. iii4\. No. 1 128. — Complaint-=-Rubbish on Street. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this fourth day of August, A. D. jgoy, J. P., who, on oath, makes complaint, and deposes and says, that in the city and county of San Francisco, state of California, the crime of misdemeanor was committed, to wit, /. B. (whose real name is unknown to this complainant), as follows; that is to say, that there, on the first day of July, A. D. ipo/, and since then, said /. B was, has been, and still is the owner, tenant, oc- cupant and lessee of a certain building, land, and premises front- ing on a certain public street there situate, to wit: [Description.] That earth, sand, rock, stones, dust, filth, rubbish, garbage, hay, straw and matter had accumulated in said Carpetiter street in front of said building, land, and premises ; that the superintend- ent of public streets, highways, and squares of said city and county, caused a notice to be duly served on and personally de- livered to said /. B., requiring him,, said J. B., to remove said earth, sand, rock, stones, dust, Mth, rubbish, garbage, hay, straiv, and matter from in front of said building, land, and premises, from the line of said building, land, and premises, to the center of said Carpenter street ; that more than three days have elapsed since *aid notice was served and received by said J. B. as aforesaid, yet (ij(i New Book of Forms. said J. B. has willfully and unlawfully neglected and refused, and still does willfully and unlawfully neglect and refuse, to re- move said earth, sand, rock, stones, dust, tilth, rubbish, garbage, ha\, strazv, and matter from in front of said building, land, and premises, from the line thereof to the center of said Carpenter street, or from any portion of said Carpenter street, in front of said building, land, and premises, thereby violating the provisions of section ii, order No. 1588, of the board of supervisors of said city and county of San Francisco, contrary, etc. [as in No. 1114]. No. 1 129. — Complaint — Privy not Connected with Sewer. [Title of Court and Cause.] State of California, Cit\ and County of San Francisco, — ss. Personally appears before me, this fourth day of March, A. D. igoj, J. D., who, on oath, makes complaint, and deposes and says, that on the thirtieth day of January, A. D. ipoy, in the city and county of San Francisco, state of California, the crime of mis- demeanor was committed, to wit, by R. R. (whose real name is unknown to this complainant), who then and there did willfully and unlawfully maintain upon certain premises there situate, occupied and owned by and under the control of the said R. R., to wit. No. 405 Rudolph street, between Emma and John streets, a certain privy, without connecting the said privy zvith the street sezver in said Rudolph street in such a manner that said privy can and coidd be effectually drained and purified, there being then and there a street sewer in said Rudolph street, on which said prem- ises are situated, with which said privy can and could be con- nected, thereby violating the provisions of section 4, order No. 1587, of the board of supervisors of the city and county of San Francisco, all of which is contrary, etc. [as in No. 11 14]. No. 1 1 30. — Complaint — Maintaining a Nuisance. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this twelfth day of June, A. D. IQ07, P. C, who, on oath, makes complaint, and deposes and says, that on the first day of June, A. D. 1907, at 409 Willow street, be- tween Ash and Hickory streets, in the city and county of San Francisco, state of California, the crime of misdemeanor was com- Justicf/s Court, 677 mitted, to wit, by /. M. (whose real name is unknown to this complainant), who then and there did willfully and unlawfully suflfer and permit certain premises there situate and belonging to and occupied by the said /. M. to become nauseous, foul, offens- ive, and prejudicial to public health and public comfort, to wit: lie caused the drainage from his bathroom and kitchen-sink to empty into the basement of the house occupied by him on said premises, thereby violating the provisions of section 6, order No. 138/, of the board of supervisors of said city and county of San Francisco, all of which is contrary, etc. [as in No. II14]. No. 1 131. — Complaint — Doing Business WitJiout License, [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this thirteenth day of June, A. D. iQoy, J. J., who, on oath, makes complaint, and deposes and says, that on the first day of June, A. D. 190J, in the city and county of San Francisco, state of California, the crime of misdemeanor was committed, to wit, by P. P. (whose real name is unknown to this complainant), who then and there, at fixed place of busi- ness, to wit, at No. 419 Willozv street, between Ash and Hickory streets, zvillfully and unlazvfully did engage in carrying on, pursu- ing, and transacting the business, trade, occupation, and employ- ment of selling, and did sell, goods, wares, and merchandise, to wit, selling dry goods, without taking out and procuring the li- cense therefor prescribed and required by law, and the said goods, wares, and merchandise, were not then and there agricultural or vinicultural productions, or productions of any stock, dairy, or poultry farm of said state, sold by the producer thereof, and were not then and there sold by an auctioneer at public sale, under license, all of which is contrary, etc. [as in No. 1114]. No. 1 132. — Complaint — Doing Business Without License — Ordinance. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this tzventy- fourth day of July, A. D. iQoy, \V. IV., who, on oath, makes complaint, and deposes and says, tliat on the second day of July, A. D. ipo/, in tlie city 6/8 New Book of Forms. and county of San Francisco, state of California, the crime of misdemeanor was committed, to wit, by 7. B. (whose real name is unknown to this complainant), who then and there was willfully and unlawfully engaged in, and did then and there willfully and imlawfully engage in, transact, and carry on the business, trade, profession, and calling of keeping a fruit store at No. 7 Dupont street, zinthout having first taken out and procured the municipal license required by ordinance, of the board of supervisors of the said city and county of San Francisco, thereby violating the pro- visions of section 2, order No. 138P, of the board of supervisors of the said city and county of San Francisco, all of which is con- trary, etc. [as in No. 1114]. No. 1 133. — Complaint — Keeping Minor in House of Prostitu- tion. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this fourth day of July, A. D. ipoy, J. C, who, on oath, makes complaint, and deposes and says, that on the first day of July, A. D. 190J, in the city and county of San Francisco, state of California, the crime of misdemeanor was committed, to wit, by W. L. (whose real name is unknown to this complainant), who then and there being the proprietor, keeper, manager, conductor, and person having the control of a certain house of prostitution, and house and room resorted to for the purpose of prostitution, there situate, did willfully and un- lawfully admit and keep a certain minor, to wit, E. /C. (whose real name is unknown to this deponent), of the age of seventeen years, therein, contrary, etc. [as in No. 1 114]. No. 1 134. — Complaint — Minor Employed in Exhibition. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this twenty-third day of June, A. D. Jpoy, IV. B., who, on oath, makes complaint, and deposes and says, that on the second day of June, A. D. ipoy, in the city and county of San Francisco, state of California, the crime of misdemeanor was committed, to wit, by /. G. (whose real name is tmknown to this complainant), who then and there being Justice's Court. 679 a parent, to wit, the father of C. G., and then and there having the care, custody, and control of a certain child under the age of sixteen years, to wit, C. G. (whose real name is unknown to de- ponent), of the age of fourteen years, did then and tliere willfully and unlawfully exhibit, use, and employ said child in and for the vocation, occupation, service, and purpose of dancing for hire in a public saloon, to wit, at No. ii^pj V. avenue, contrary to, etc. [as in No. 1114]. No. 1 135. — Complaint — Common Drunkard- [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this thirteenth day of August, A. D. Jpoy, W. K., who, on oath, makes complaint, and deposes and says, that on the second day of August, A. D. iQoy, and from said second day of August, A. D. ipoy, up to the time of the making of this complaint, in the city and county of San Francisco, state of California, the crime of misdemeanor was committed, to wit, by /. C. (whose real name is unknown to this complainant), who then and there, and from said second day of August, A. D. ipo/, up to the time of the making of this complaint, not being a Cali- fornia Indian, there unlawfully zvas, has been, and still is, a com- mon drunkard, all of which is contrary, etc. [as in No. 1114]. No. 1 136. — Complaint — Obstructing Streets, [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this third day of Afay, A. D. ipo^, J. B., who, on oath, makes complaint, and deposes and says, that on the first day of May A. D. IQOJ, at 11 .-Idclinc street, be- tween William and Mary streets, in the city and county of San Francisco, state of California, the crime of misdemeanor was com- mitted, to wit, by C. F. (whose real name is unknown to this complainant), who then and there owning, occupying, and having control of certain premises there situate, did then and there will- fully and unlawfully cause to be placed and suffer to remain in front of said premises, upon the sidezvalk of said street, and the half of said street next to said premises, a threshing-machine, which was then and there an obstruction, and which nnlawfuUv did then and there obstruct the passage of said street and sidewalk for more than one hour at a time, the said street and sidezvalk be- ing then and there a public street and public sidezvalk in said city and county, the said threshing-machine then and there unlazvfully 68o New Book of Forms. remaining upon said street and sidewalk for more than one hour at a time and was not merchandise or goods in the actual course of receipt, delivery, or removal, and was not lamp-posts, nor hy- drants, nor ornamental trees, nor barriers for the protection of ornamental trees, nor watering troughs, nor material being used in the construction or repair of any building, thereby violating the provisions of section ii, order No. ij88, of the board of su- pervisors of said city and county of San Francisco, all of which is contrary to, etc. [as in No. 1114]. No. 1 137. — Complaint — Discharging Firearms. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this thirty-first day of July, A. D. jgo^, P. B., who, on oath, makes complaint, and deposes and says, that on the twentieth day of July, A. D. 1907, in the city and county of San Francisco, state of California, the crime of misde- meanor was committed, to wit, by /. D. (whose real name is un- known to this complainant), who then and there did willfully and unlawfully discharge and shoot off a certain firearm, to wit, a shotgun, within three hundred yards of a certain public highway and street there situate, to wit. No. 3000 Julia street, and also within three hundred yards of a certain dwelling-house there situ- ate, to wit, the dzvelling-house of J. D. (whose real name is un- known to this complainant), and within that portion of said city and county bounded by Devisadero, Fell, Stanyan, Frederick, Fifteenth, Castro, Twenty-sixth and Napa streets, and the outer line of the street forming the Water Front of said city and county, the said /. D. then and there not having any special permission in writing from the mayor of said city and county to then and there discharge and shoot off said firearm, to wit, said shotgun, and the said J. D. was not tJien and there shooting destructive animals within or upon his ozvn inclosure, thereby violating the provisions of section 22, order No. 1587, of the hoard of super- visors of said city and county of San Francisco, contrary, etc. [as in No. 1114]. No. 1 1 38. — Complaint — InsufBcient Fresh Air Per Capita. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Now comes /. B., who, being duly sworn, deposes and says, that on the fourth day of April, A. D. 1907, in the city and county of Justice's Court. 68i San Francisco, state of California, the crime of misdemeanor was committed, to wit, by Ah Chee (whose real name is unknown to this complainant), as follows: that is to say, that then and there, and within the limits of an incorporated city and county, to wit, the city and county of San Francisco, a certain number of per- sons, to wit, three hundred persons, did willfully and unlawfully sleep and lodge in a certain room and apartment in a certain building, house, and structure there situate, on Dupont street, be- tivccn Vallejo and Green streets, and within the limits of said incorporated city and county ; that said room and apartment did then and there and does contain less than five hundred cubic feet of space in the clear for each and every person then and there sleeping in and lodging in said room and apartment, and so occupying said room; that said Ah Chee then and there did will- fully and unlazvfidly use and hire said room and apartment for the purpose of sleeping therein and lodging therein, said room and apartment then and there containing less than Hve hundred cubic feet of space in the clear for each and every person then and there sleeping therein and lodging therein; and that the said Ah Chee, with a certain number of other persons, to zvit, three hundred persons, did then and there zinllfully and unlazv- fully sleep and lodge in said room and apartment, the said room and apartment then and there containing less than five hundred cubic feet of space in the clear for each and cz'ery person then and there sleeping therein and lodging therein as aforesaid ; and said All Chee was then and there found sleeping and lodging in said room and apartment as hereinbefore alleged, contrary, etc. [as in No. J 114]. No. 1 1 39. — Complaint — Keeping House of Ill-fame. [Title of Court and Cause.] State of California, City and County of San Francisco, — Sa. Personally appears before me this fourteenth day of July, A. D. iQoy, C. L., who on oath, makes complaint, and deposes and says, that on the f/iird day of Jiily, ipoy, in the city and county of San Francisco, state of California, the crime of misdemeanor was committed, to wit, by IV. G. (whose real name is unknown to this complainant), zvho then and there did willfully and un- lawfully keep a certain house of ill-fame in said state, resorted to for the purpose of prostitution and lewdness, contrary, etc. [as in No. I II 4]. 682 New Book of Forms. No. 1 140. — Complaint — Visiting House of Ill-fame. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me this thirteenth day of Jxily, A. D. 190J, J. F., who, on oath, makes complaint, and deposes and says, that on the Urst day of Jtdy, A. D. iQoy, in the city and county of San Francisco, state of California, the crime of misdemeanor was committed, to wit, by T. C. (whose real name is unknown to this complainant), who then and there did willfully and unlawfully become, and was a visitor to j certain house of ill-fame there situate, and in that portion of said city and county of San Fran- cisco bounded by Larkin, Market, Church, Eighteenth, and Chan- nel streets and the Water Front, to wit. No. 8'j2g Grant avenue, thereby violating the provisions of section 55, order No. 1587, of the board of supervisors of said city and county of San Fran- cisco, contrary, etc. [as in No. 1114]. No. 1 141, — Complaint — Lottery Tickets in Possession. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Now comes /. W., who, being duly sworn, deposes and says, that on the fourth day of May, igoj, in the city and county of San Francisco, state of California, W. S. (whose real name is unknown to this complainant), did then and there willfully and unlawfully have in his possession a certain ticket, certificate, paper, and instrument, purporting, representing, and understood to be and to represent a ticket, chance, share, and interest in and depending upon the event of a lottery, and that said possession was not innocent, and was not for a lawful purpose; said ticket was No. 97,6/^, and was issued by the Alameda Lottery Com- pany; thereby violating the provisions of section 3P/2, order No. 8746, of the board of supervisors of said city and county of San Francisco, as amended by order No. P76§ of said board, con- trary, etc. [as in No. it 14]. No. 1 142. — Complaint — Keeping Office for Sale of Lottery Tickets. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me this twelfth day of January, A. D. ip07, J. J., who, on oath, makes complaint, and deposes and Justice's Court. 683 says : that on the ^rst day of January, A. D. /po/, in the city and county of Sati Francisco, state of California, the crime of misdemeanor was committed, to wit, by P. B. (whose real name is unknown to this complainant), who then and there did will- fully and unlawfully open, set up, and keep at No. jooo Grant avenue a certain office, room and place there situate for the sale of tickets in a certain lottery, and for the registering of the num- bers of tickets in said lottery, to zvit, the tickets of the Louisiana Lottery Company, contrary, etc. [as in No. 1114]. No. 1 1 43. — Complaint — Cruelty to Animals. [Title of Court and Cause.] State of California, City and County of Sent Francisco, — ss. Personally appears before me this fourteenth day of July, A. D. 1907, W. C., who, on oath, makes complaint, and deposes and says, that on the first day of July, A. D. 1907, in the city and county of San Francisco, state of California, the crime of mis- demeanor was committed, to wit, by /. F. (whose real name is unknown to this complainant), who then and there did will- fully and unlawfully and cruelly torture and torment a certain animal, to zvit, the said defendant beat on the head a horse at- tached to a zvagon driven by the defendant on a public street, zvith an iron bar about one inch thick and four feet long, thereby causing said horse great pain, contrary, etc. [as in No. in 4]. No, 1 144. — Complaint — Vagrant — Against. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this tzventy-third day of June, A. D. igoj, J. C, who, on oath, makes complaint, and deposes and says, that on the third day of June, A. D. 1907, and from said third day of Juy\,e, A. D. 1907, up to the time of the making of this complaint, in the city and county of San Francisco, state of California, the crime of misdemeanor was committed, to wit, by /. C. (whose real name is unknown to this deponent), who then and there and from said third day of June, A. D. 1907, up to the time of the making of this complaint, not being a Califor- nia Indian, there unlazvfully roomed and unlazvfullx has roamed about from place to place zvithout any lazvful business; zvillfuUy 684 New Book of Forms. and unlcnvfuUy was, has been, and during said time continued to be, and still is, an idle and dissolute person, and an associate of known thieves, who wanders and roams, and has during said time zvandered and roamed about the streets of said city and county at late and unusual hours of the night; xmll fully and un- lazvfully zvas, has been, continued to be, and still is, a lewd and dissolute person, who lives, and has during said time lived, in and about houses of ill-fame there situate, contrary, etc. {as in No. 1 1 14]. No. 1 145. — Complaint — Selling Liquors Without License, [Title of Court and Ca.use.] State of California, City and County of San Francisco, — ss. Personally appears before me this tzventy-ninth day of June, A. D. igoj, J. W., who, on oath, makes complaint, and deposes and says, that on the fourth of July, A. D. 1907, in the city arid county of San Francisco, state of California, the crime of mis- demeanor was committed, to wit, by P. H. (whose real name is unknown to this complainant), who then and there willfully and unlawfully did engage in carrying on, pursuing, and transacting the business, occupation, and employment of selling, and did sell, spirituous liquors, malt liquors, and fermented liquors, and fer- mented zvines, in less quantities than one quart, zvithout taking out and procuring the license therefor prescribed and required by law, all of which is contrary, etc. [as in No. 1114]. No. 1 146. — Complaint — Disturbing the Peace. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this tzvcnty -fourth day of July, A. D. 1907, W. H., who, on oath, makes complaint, and deposes and says, that on the second day of July, A. D. 1907, in the city and county of San Francisco, state of California, the crime of misdemeanor was committed, to wit, by /. D. (whose real name is unknown to this complainant), who then and there did will- fully, unlawfully, and maliciously disturb the peace and quiet of the neighborhood of the southwest corner of Grant avenue and Dupont street, in said city and county, and the peace and quiet of IV. H., then and there being, by then and there making loud and unusual noise, by tumultous and offensive conduct, by threat- ening, traducing, quarreling, chnUeriging to fight, and by fight- ing, contrary, etc. [as in No. 1114]. Justice's Culkt. C85 No. 1 147. — Complaint — Violating Fire Ordinance, [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this ninth day of May, A. D. 1907, J. S., who, on oath, makes complaint, and deposes and says that on the third day of May, A. D. 1907, in the city and county of San Francisco, state of California, the crime of misdemeanor was committed, to wit, by /. L. (whose real name is unknown to this complainant), who then and there did willfully and unlaw- fully erect, build, and maintain and cause to be erected, built and maintained, over and upon the roof of a certain building sit- uate ivithin the limits of said city and county, to wit, on 40Q Eva- line street, between Adeline and Caroline streets, public streets of and in said city and county, certain scaffolding, zvithout hav- ing first obtained the xvritten permission of the board of super- visors of said city and county so to do, stating fully for zuhat purpose said scaffolding was to have been erected and used; thereby violating the provisions of section 2, order No. 1369, and section 69 of order No. 1587, of the board of supen'isors of the city and county of San Francisco, contrary, etc. [as in No. 1114]- No. 1 148. — Complaint — Malicious Mischief. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this fourteenth day of August, A. D. 1907, J. B., who, on oath, makes complaint, and deposes and says : that on the second day of August, A. D. 1907, in the city and county of San Francisco, state of California, the crime of malicious mischief was committed, to wit, by S. L., who then and there did willfully, unlawfully, and maliciously break and injure the front door of house No. 7326 Grant a^'enue, the said house being then and there the property of said J. B., and to his (the said J. B.'s) damage in the sum of one hundred dollars, all of which is contrary, etc. [as in No. 1114]. CS6 New Book of Forms. No. 1 1 49. — Complaint — Keeping Opium Resort. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me, this tzvefity-fourth day of March, A. D. jgoy, J. T., who, on oath, makes complaint, and deposes and says, that on the fourteenth day of March, A. D. iQoy, in the city and county of San Francisco, state of California, the crime of misdemeanor was committed, to wit, by A. H. (whose real name is unknown to this complainant), who then and there did willfully and unlawfully keep and maintain a certain place, house, and room there situate, where opium is smoked, and zvhcrc per- sons assemble for the purpose of smoking opium and inhaling the fumes of opium, to wit, at No. 82/ Grant avenue, thereby violating the prozisions of section 61, order No. 158/, of the board of supervisors of said city and county of San Francisco, contrary to the form, force, and effect of the statute in such cases made and provided, and against the peace and dignity of the people of the state of California; and this complainant, upon oath, accuses the said A. H. of having committed said crime ; and this complainant further alleges and deposes that the said ac- cused was then and there arrested therefor in the actual com- mission of the said offense, and prays that the said accused may be brought before a magistrate, and dealt with according to law. No. 1 150. — Complaint — Petit Larceny. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me this fourteenth day of May, A. D. iQoy, J. D., who, on oath, makes complaint, and deposes and says, that on the second day of May, igoy, in the city and county of San Francisco, state of California, the crime of petit larceny was committed, to wit, by /. A. (whose real name is unknown to this complainant), who then and there did unlawfully and felon- iously steal, take, and carry av/ay one silver zvatch. No. 8y,22'j, manufactured by the Judson Rolling Mill Company, Alameda county, of the value of forty dollars, and of the personal goods and property of J. D., all of which is contrary, etc. [as in No. I I 14]. NOTE. — California, Pen. C, sec. 1426. Justice's Court. 687 No. 1 151. — Complaint — Visiting Opium Den. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. Personally appears before me this ninth day of June, A. D. igoy, J. S., who, on oath, makes complaint, and deposes and says, that on the second day of June, A. D. 190J, in the city and county of San Francisco, state of California, the crime of misdemeanor was committed, to wit, by /. W. (whose real name is unknown to this complainant), who then and there did willfully and unlaw- fully become an inmate of and a znsitor to a certain place, house, and room there situate, ivhcre opium is smoked, and zvhere per- sons assemble for the purpose of smoking opium and inhaling the fumes of opium, to wit, at No. 82J Grant avenue, thereby violating the provisions of section 61, order No. 1587, of the board of supervisors of said city and county of San Francisco, contrary to the form, force, and effect of the statute in such cases made and provided and against the peace and dignity of the people of the state of California; and this complainant, upon oath, accuses the said /. W. of having committed said crime ; and this complainant further alleges and deposes that the said ac- cused was then and there arrested therefor in the actual com- mission of the said offense, and prays that the said accused may be brought before a magistrate, and dealt with according to law. No. 1 1 52. — Complaint — Idle and Dissolute Minor. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. To tlie Honorable P. G., Judge of the Police Judge's Court, of the City and County of San Francisco; Personally appears before me this tliirtecnth day of July, A. D. IQOJ, J. G. and W. B., who being duly sworn, according to law, each for himself, and not one for the other, do, on oath, make ap- plication and complaint to said judge, and do depose and say, that they are citizens of the state of California, and residents of the city and county of San Francisco, state of California: that one J. B. is a minor child ; that said minor child is under the age of eighteen years, to wit. of the age of fourteen years ; that said minor child is leading an idle and dissolute life in said cit\ and county of San Francisco, state of California; that the parents, to 688 New Book of Forms. wit, the father of said minor, J. B., and the mother of said minor, J. B., neglect and fail to exercise and do not exercise any salutary control over said minor child; and these deponents therefore pray that a warrant be issued for the arrest of said minor child, and that said minor child be brought before the Honorable P. G., judge of the police judge's court, of the city and county of San Francisco, and be dealt with according to law, and be sentenced and committed to tlie Industrial School of tlie city and county of San Francisco. No. 1 153. — Complaint — Threats to Commit Offense. [Title of Court and Cause.] A. B. C, complaining of S. D. B., says, that on the first of August, igoj, at the town of PlacerviUe, in the county of El Dorado, state of California, S. D. B. threatened to kUl this com- plainant, and at the said time and place exhibited a shotgun loaded zv-ith powder and buckshot, in a condition ready to fire, and said that he would shoot complainant as soon as he found him, and that he was then looking for him ; that complainant believes that the said S. D. B. will carry said threat into execution as soon as he meets complainant. Wherefore, complainant prays that a warrant may issue for the arrest of said S. D. B., and that he may be required to give security to keep the peace, as is by law required in such cases. NOTE,— California, Pen. C, sees. 701-706. No. 1 154. — Complaint on Commitment. [Title of Court and Cause.] The People of the State of California, to the Sheriff of the County of Tehama: An order having been this day made by me, that /. D. be held to answer upon a charge of [state briefly the nature of the of- fense], committed in said township and county, on or about the fifth day of August, IQO/, you, the said sheriff, are commanded to receive him, the said /. D., into your custody, and detain hira until he is legally discharged. And I hereby order that the said /. D. be admitted to bail in the sum of Ave hundred dollars* NOTK— California, Pen, O, sec 877. Justice's Court. 689 No. 1 155. — Complaint — Claim and Delivery. [Title of Court and Cause.] E. H., the plaintiff, in the above-entitled action, complaining- of A'^. S., the defendant in the said action, alleges: That on the fourth day of June, ipo^, at the city and county of San Francisco, said plaintiff was, and now is, the owner and entitled to the possession of the following described personal property, to wit: [Description.] That said personal property is of the value of two hundred and fifty dollars. That said defendant, on the fourth day of June, ipoy, at the county of Sacramento, without the plaintiff's consent, and wrong- fully, came into the possession of said personal property, and still retains possession of the same, and he claims to be the owner of the same. That before the commencement of this action, to wit, on the sixth day of June, igoy, at the place last aforesaid, the plaintiff demanded of the defendant the possession of said personal prop- erty, but to deliver the possession thereof the defendant refused and still refuses. That the said defendant still unlawfully withholds and detains said property from the possession of the plaintiff, to his damage in the sum of $2^0. That the same has not been taken for a tax, assessment, or fine, pursuant to a statute, or seized under an execution or an attachment against the property of the plaintiff. [Or if it had been so seized or attached, allege the fact; and aver that the said property is by law exempt from execution.] Wherefore, the plaintiff demands judgment against the defend- ant for the recover}^ of the possession of said personal property, or for the sum of two hundred and fifty dollars, the value thereof, in case a delivery cannot be had, together with twenty dollars, damages, and for costs of suit (All courts.) NOTE. — The provisions of the codes and str.tntos relating to "claim and delivery of personal property," are substantially the same in a justice's and superior eourt. For forms, see Superior Court. See Cali- fornia, C. C. P., sec 870, and referencea in similar actions in superior courts. New Forma — i4 690 N£;w Book of Forms. No. 1 156, — Complaint — Holding After Expiration of Term. [Title of Court and Cause.] F. A., a resident of the county of Sierra, the plaintiff in the above-entitled action, complaining of H. S., of the county of Sierra, the defendant in said action, alleges: That on or about the third day of Janvuiry, ipo6, the said plain- tiff, by a verbal lease made on or about the said day, at the county of Sierra, leased, demised, and let to the said defendant, H. S., of the said county of Sierra, the premises situate, lying being in the said county of Sierra, state of California, and de- scribed as follows, to wit: All that bank building on the north- cast corner of San Francisco street and Marysville place. To have and to hold the said premises to the defendant for the term of one month, from the third day of January, ipo6, at the monthly rent of twenty-five dollars, payable on the third day of the month, in advance. That by virtue of said lease, said de- fendant went into possession of said premises, and he still con- tinues to hold and occupy the same. That the term for which said premises were demised, as afore- said, has terminated, and that the said defendant holds over and continues in possession of said demised premises, without the permission of the said plaintiff, and contrary to the terms of said lease. That the said plaintiff, since the expiration of the term for which said premises were demised, as aforesaid, to wit, on the fourth day of February, ipo6, made demand in writing of the said defendant to deliver up and surrender to plaintiff the pos- session of said premises. That more than three days have elapsed since the making of such demand, and the defendant has refused and neglected, for the space of three days after such demand, to quit the possession of the said demised premises, and still does refuse. That the monthly value of the rents and profits of the said premises is the sum of twefity-five .do\\2iVS. Wherefore, the said plaintiff prays judgment for the restitu- tion of the said premises, and for damages for the rents and profits of said premises, and that such damages may be trebled as damages for the occupation and unlawful detention and hold- ing over of the same, amounting to the sum of twenty-five dol- lars per month, besides costs of suit. (All courts.) NOTE.— California, C. C. P., sec. 1161. Justice's Court. (S91 No. 1 1 57. — Complaint — Holding After Rent Due. [Title of Court and Cause.] D. F., a resident of the county of Sierra, the plaintiff in the above-entitled action, complaining^ of /. B., of the county of Sierra, the defendant in said action, alleges : 1. That on or about the first day of January, 190J, the said plaintiff, by a verbal agreement and lease, made on or about the said day, at the city and county of San Francisco, leased, demised, and let to the said defendant, of the said city and county of San Francisco, the premises situate, lying, and being in the city and county of San Francisco, state of California, and described as fol- lows, to wit: [Description.] To have and to hold the said premises to the defendant at the monthly rent of twenty dollars, payable monthly on the first day of each and every month thereafter, in advance, in gold coin of the United States. 2. That by virtue of said agreement and lease, so made as aforesaid, the defendant zvent into the possession and occupation of said demised premises, and still continues to hold the same, as tenant of said plaintiff. 3. That pursuant to the terms of said agreement and lease, there became and was due on the first day of Jxme, 1907, from said defendant to said plaintiff, for the rent of said premises for one month, to wit, from the first day of May, igoj, to the first day of June, iQoy, the sum of twenty dollars, gold coin of the United States, amounting to the sum of $20. 4. That on a certain day, to wit, the third day of June, igoy, at said city and county, demand in writing was dulv made by said plaintiff of said defendant, for, and requiring the payment of, said rent then due, amounting to the said sum of twenty dol- lars, or the possession of the said demised property, but said defendant neglected and refused, for the space of three days, after demand so made as aforesaid, and still neglects and refuses, to pay said rent, or surrender possession of said premises. 5. The said defendant unlawfully holds over and continues in the possession of said premises after default in the payment of the rent, pursuant to the lease and agreement under zvhich said property is held, and zvithout the permission of the plaintiff; by reason zvhereof the plaintiff has already sustained damages in the sum of tzvcnty dollars, gold coin of the United States for the rent of said premises actually accrued from the first day of May, ipoy, to the first day of June, 190J. 692 Ne;w Book of Forms. Wherefore, said plaintiff prays judgment against said defend- ant for the restitution and possession of said premises, and for the sum of twenty dollars, the amount now due and unpaid for the rent thereof, and such further sum as may accrue from the time of filing this complaint to the rendition of judgment herein; and that the amount found due for rent may be trebled and made payable in the gold coin of the United States, and also for the costs of this suit, and that, by said judgment it be declared that said lease (or agreement) under which said defendant holds shall be forfeited. (All courts.) NOTE.— California, C. C. P., see. 1161. In California and elsewhere or the Pacific Coast, the proceedings in this class of cases are the same, substantially, in a justice's as in a superior court. The only material difference is in the amount of rent due under the terms of the tenancy. See the citations under similar forms used in the superior courts. No. 1 158. — Controversy — Submission of Without Action. [Title of Court and Cause.] It is stipulated between the parties hereto, as follows: A. B., the plaintiflf, was, on the iirst day of May, 1907, a real estate agent. At the same time C. D., the defendant, owned a tract of land in said county and township; that both plaintiff and defendant reside in said township; that on said day it was verbally agreed between plaintiff and defendant that if plain- tiff within three months zvould find a purchaser zvho zvoidd pay ten thousand dollars for said land, that defendant, on de- mand, zvould pay plaintiff $350; that on the third day of June, IQOJ, plaintiff found a purchaser, to zvhom defendant, on June 10, igo/, granted said land for ten thousand dollars; that on the tenth day of said month of June, plaintiff demanded of defend- ant $330, zvhich defendant refused to pay, and never has paid. It is further stipulated that this controversy shall be, and the same is, hereby submitted for judgment without further testi- mony. State of California, County of Lake, — ss. A. B. and C. D., being each duly sworn, says eacli for himself, and not one for the other, that the statements contained in the foregoing stipulation are true, and occurred precisely as therein stated ; that this proceeding is instituted in good faith to deter- mine the rights of said parties. (All courts.) KOTK— California, C. a P., sees. 1138-1140. Justice's Court. 693 No. 1 159. — Docket — Justice of Peace. State of California, County of Sierra. In Justice's Court, Butte Township. J. S. V. H. B. June I, igoy. — Complaint in writing filed by /. S. to recover of defendant H. B., one hundred dollars for goods sold and deliv- ered, and summons issued dated this day. Writ of attachment issued to the sheriff of said county. June 2, iQoy. — Summons returned served in tliis township. June J, iQoy. — Plaintiff appeared in person in court at ten o'clock A. M. Defendant also appeared in person and orally an- swered the complaint herein as follows, to wit: "Now comes the defendant, and answering plaintiff's complaint, denies each and every allegation thereof." Whereupon, Tuesday, June 10, iQoy, at the hour of ten A. M., was fixed for the trial hereof, and the plaintiff and defendant were by me then and tliere notified of the time fixed for trial. June 10, igoy. — At ten o'clock A. M., both parties appeared in person, and I being engaged in the trial of another action, postponed the trial hereof until to-morrow at ten o'clock A. M. June II, 1907. — At ten o'clock A. M. both parties appeared, and on motion of defendant the trial was postponed until the 28th day of August, igoj, at two o'clock P. M. August 28, igo/. — At two o'clock P. M., both parties appeared and announced themselves ready for trial, and the plaintiff de- manded a trial by jury. Wherefore, I issued an order for a jury of twelve men to be summoned as by law directed, returnable to- morrow at ten A. M., that being the time fixed for the trial. August 2p, igoy. — At ten o'clock A. M. the following named jurors appeared and answered as their names were called: [In- sert navies.] The following named jurors were challenged by defendant for cause, and the challenges allowed, and said jurors excused [insert names] ; and the following named jurors were challenged by plaintiff and the challenges allowed, and the jurors excused [insert names]. Whereupon, an order was made as by law required, returnable fortliwith, for the summoning of six jurors to complete the panel, and tlie following named jurors 694 New Book oe Forms. were summoned and appeared in compliance with said order.* The jury having been completed, the following named jurors were sworn to try the issue involved herein, viz. [insert names]. The following named witnesses were sworn and examined on the part of the plaintifif, viz. [insert names] ; and the following were sworn and examined on the part of defendant: [Insert names.] After argument by the parties, the jury were instructed as to the law and retired to deliberate, returned into court and rendered a verdict for defendant and were then discharged. Wherefore judgment is, this 2pth day of August, 1907, given for defendant, and against plaintiff, for forty-five dollars costs, which said costs were taxed by me. August 30, igoy. — Execution for forty-five dollars was issued against plaintiff, on demand of defendant, to A. B., Esq., con- stable of this township. September 10, 1907. — Execution returned satisfied. Received of A. B., Esq., constable, forty-five dollars collected by him on execution herein. September 10, 1007. — Judgment satisfied. F. A., J. P. KOTE.— California, C. C. P., sees. 911-918. No. 1 160. — Docket — Certified Copy. [Title of Court and Cause.] To the County Clerk of the County of Alameda, State of Cali- fornia; I hereby certify that the following is a copy of my docket en- try in the above-entitled action, viz. : This case came on to be heard before me on the complaint, summons, demurrer to complaint, and verified answer of defend- ant, and it appearing from said answer that the determination of said action will necessarily involve the question [of title or pos- session to real property, or the legality of any tax, impost, assess- ment, toll, or municipal line, as the case mray be], I therefore suspend all proceedings in this action. NOTE.— California, C. C. P., sec. «38. *If the trial is by the court, so state, without allusion to a jury. If the jury disagree and is discharged, so state. If another jury is Bummoned, use the same form, after stating the disagreement and dis- charge of the first jury. If after disagreement a jury is waived, so Btate. If the execution is returned unsatisfied, state the fact; and if an alias execution is issued, state the fact and its return. State the dates of renewals. If ayjpcal be taken by the plaintiff, state that fact, as- "August 30 [or any date], received of plaintiff written notice of appeal on questions of both law and fact," or "on questions of law." If an appeal bond is filnd. state the fact. If money is deposited in lieu of a bond, state the amount. Justice's Court. 695 Judgment $i$o oo Costs. II oo Accruing Costs. — Execution and Pil in? Levy , Advertisement. . .. Keeping $i6i 00 ^o 2 00 1 00 No. ii6i. — Elxectrtion. [Title of Court and Cause.] The People of the State of California, to the Sheriff or any Con- stable of the County of Yuba, Greeting: Judgment.- ^ Whereas a judgment was ren- dered before me, A. G., a. justice of the peace of East Bear town- ship, in said county of Yuba, on the first day of August, 1907, against /. D., defendant, and in favor of R. R., plaintiff, for the sum of one hundred and fifty dol- lars damages, and eleven dollars costs of suit, zvhich said judgment ivas made payable in gold coin of $164 50) ^^^ United States. These are, therefore, to command you, that out of the per- sonal property, and if sufficient personal property cannot be found, then out of the real property of said /. D., you levy and cause to be made by sale, in gold coin of the United States, the said amount of one hundred and fifty dollars damages, and eleven dollars costs of suit, together with any costs that may accrue, and of this writ make legal service and due return within sixty days after your receipt thereof. NOTE.— California, C. C. P., sec 902. No. 1 162. — Execution — Costs. [Title of Court and Cause.] The People of the State of California, to the Sheriff or any Con- stable of said County, Greeting: Whereas, a judgment was rendered by H. J. IV., the under- signed, a justice of the peace of said township, county of San Mateo, on the first day of May, igoj, against /. 5*., in the action of /. S. V. S. B., for costs ; and whereas, the sum of tivcnty dol- lars is due the un.jersigned from the said /. S., plaintiff, for his fees in said action due as by law provided : These are therefore to command you, the said sheriff, that out of the personal property, and if sufficient personal property cannot be found, then out of the real property of said /. S., you levy and cause to be made by sale, the said amount of tivcnty 696 New Book of Forms. dollars, fees due as aforesaid, together with any costs that may accrue ; and of this writ make legal service and due return within sixtv days after your receipt hereof, with what you have done indorsed hereon. NOTE. — A justice, not under salary, but compensated by statutory fees, enters his unpaid fees in the judgment, and notwithstanding the fact that he may be the only one boncficially interested in the judg- ment, issue execution in the name of the prevailing party for his costs: California, C. C. P., sec. 896, No. 1 163. — Execution — Renew^al — Indorsement. The within execution is this day renewed at the request of the judgment creditor. NOTE. — California, C. C. P., see. 903. It may be renewed as often as necessary before the expiration of the time for its return. Removal does not change the time of return. If more time is necessary, return it unsatisfied and issue another. No. II 64. — Execution — Certificate — Redemption. [Title of Court and Cause.] I hereby certify that A. B. C, the judgment debtor in the case of C. D. F. V. A. B. C, has redeemed from me the following described real estate [description], sold under execution to sat- isfy said judgment, and purchased by me at the execution sale thereof; and said judgment and sale are no longer liens on said property. (All courts.) NOTE. — California, C. C. P., sec 703 (must be acknowledged). No. 1 1 65. — Execution — Property Claimed by Third Person. [Title of Court and Cause.] Please take notice that I am the owner of the following de- scribed property upon which you have levied execution in the above-entitled action, viz.: [Description.] My title to it is a grant from A. B. C, to me, executed and acknowledged and de- livered to me, and is of record in the office of the county recorder of Butte county, m volume No. igy of Deeds, at pages i'j6~i'jg. Signed, verified and served upon the sheriff or constable. (All courts.) NOTE. — California, C. C. P., sec. 689. Justice's Court. 697 No. 1 1 66. — Exempt — Claim Property by Third Party. [Title of Court and Cause.] Yon will please take notice that the following described prop- erty, to wit [description], levied on by you under the writ of ex- ecution issued in the above-entitled action, is exempt from execu- tion, and the defendant herein claims the same as exempt, and you are requested to forthwith release your levy on said property and restore it to defendanL (All courts.) NOTE. — Snch claim need not be m writing. When the ofccer has notice that property is exempt he is liable if he sells it. In snch ease it is the practice for the oflScer to exact indannity before sale: CaL, C. C. P., sec 689. No. 1 167. — Guardian — Application — Appointment of. [Title of Court and Cause,] L. M. Y. represents to the court that the plaintiff in interest therein, B. W., is under ag-e of fourteen years [or insane, incom- petent, etc.] ; that he has no general guardian; that applicant is a friend, and also the attorney for said B. W. in said action ; and that it is necessary for said B. W. to have a guardian ad litem in said action. Wherefore, he prays that he may be appointed guardian ad litem for said infant in said action. (All courts.) NOTE.— California, C. C. P., sec. 843. No. 1 168. — Guardian — Appointm.ent of. [Title of Court and Cause.] Upon reading and filing the application of L. M. Y., Esq., a friend of B. W., an infant under the age of fourteen years, and it appearing that sufficient grounds exist therefor, it is ordered that said L. M. Y., Esq., be and he is hereby appointed guardian ad litem for said infant in said action. (All courts.) NOTE.— California, C. C. P., sec. 843. No. 1 1 69. — Inspection, Request for. [Title of Court and Cause.] To A. B. C, justice, etc.: The plaintiff [or defendant] demands an inspection and copy of the account [or instrument] set up in 698 New Book of Forms. the answer herein as a counterclaim [or described in the com- plaint as the foundation of plaintiff's cause of action]. (All courts.) NOTE. — California, C. C. P., se*. 896. No. 1 1 70. — Execution — Instructions to Officer. [Title of Court and Cause.] You are "hereby directed to levy, by virtue of the writ of exe- cution issued in the above-entitled suit herewith handed to you, on all the right, title, and interest of A. L. C, the therein named defendant, in and to the following described real estate, situate, lying, and being in the county of Butte, standing of record in the office of the county recorder of said county in the name of C. L. P. [or the defendant], viz. [particular description]. (All courts.) NOTE, — An officer is not obligated to search for property npon which he may levy. If he knows of such property, it is his duty to make a levy. An officer is never supposed to be conscious of such facts. However, it has always been the practice to give special instructions to the officer who holds a writ of execution or other similar writ. As to attachments, the California Code of Civil Procedure, section 543, directs Buch instructions to be given. No. 1 171. — Instructions to Officer. [Title of Court and Cause.] You will please take notice that you are directed to levy on the following described property to satisfy the judgment and costs in said action. (All courts.) NOTE.— California, C. C. P., sec. 691, This may be done by a de- fendant when there is more property of his (the judgment debtor's) within view of the officer than is sufficient to satisfy the judgment and accruing costs. No. 1 1 72. — Instructions to Officer. [Title of Court and Cause.] You are hereby instructed to levy on, by virtue of the accom- panying writ in the above-entitled suit, the following described property, to wit : All moneys, credits, effects, and debts due or owing in the hands or under the control of A. B. C, of No. 128 A street, Sacramento, belonging to A. R. S., the defendant in the above-entitled action. (All courts.) NOTE. — California, C. C. P., sec 543, Justick's Court. 699 No. 1 1 73. — Instructions to Officer. [Title of Court and Cause.] To C. B., Esq., Constable Bush Street Township, Alameda: By authority of the writ of attachment issued in the above- entitled action, you will please attach and safely keep all of the following described property: [Description.] And you are hereby notified that S. K., Esq. [not a defend- ant], has in his possession the following property belonging to defendant: [Description.] (All courts.) NOTE.— California, C. C. P., sec 542. No. 1 1 74. — Instructions to Officer — Personalty. [Title of Court and Cause.] You are hereby instructed to levy, by virtue of the accompany- ing writ in the above-entitled suit, on the following described property at plaintiff's expense [or place a keeper in charge, if the defendant will advance the expense; or if he will assent there- to, the charges to be added as costs; or you are instructed to remove the said property, unless the defendant requests you to place a keeper in charge, etc.], (All courts.) NOTE.— California, C. C. P., sec. 542. No. 1 1 75. — Judgment — Arrest oL [Title of Court and Cause.] In this case judgment is given for plaintiff and against de- fendant for tivo hundred and fifty dollars, and costs taxed at sev- enteen dollars, and it appearing that defendant is about to de- part from the state with intent to defraud his creditors [or if for any other reason he is subject to arrest and imprisonment], he is therefore subject to arrest and imprisonment under this judgment. Judgment $250 Costs 17 $267 (All courts.) NOTE. — When judgment is rendered in a ease where the defendant is subject to arrest and imprisonment thereon, the fact that he is so subject must be stated in the judgment: Gal, C. C. P., see. S93. 7O0 New Book op Forms. No. 1 1 76. — Judgment — Confession — Money Received. [Title of Court and Cause.] I, C. D., defendant above named, do hereby confess judgment in this case in favor of said plaintiff, A. B., for the sum of two hundred and ninety-nine dollars and ninety-nine cents, and I hereby authorize the said justices of the peace to enter judgment therein therefor against me for said sum, together with the costs of entering the same, with legal interest thereon from date. This confession of judgment is for a debt now justly due and owing to the said plaintiff, arising from the following facts, to wit: On June j, 1^04, I borrowed of A. B. $200, and promised to pay him said amount on July i, 190^, with interest thereon July I, ipo4, at 10 per cent a year until paid. That I have not paid A. B. any part of said principal, nor have I paid him any interest, and there is due him at this date, to wit, July i, ipo6, $200 and $20 interest ; nor have I any offset to said amount or any part thereof. State of California, City and County of San Francisco, — ss. C. D., the defendant above named, being duly sworn, deposes and says, that the foregoing statement is true of his own knowl- edge. (All courts.) NOTE.— California, C. C. P., sees. 112, 1122-1135. No. 1 1 77. — Judgment — Confession — Docket Entry. [Title of Court and Cause.] In this action the defendant, C. D., having filed his confession of judgment, wherein he consents that judgment be entered in favor of the plaintiff, A. B., for the sum of tzvo hundred and ninety-nine dollars; wherefore, it is adjudged that A. B., plain- tiff, do have and recover of and from C. D., defendant, the sum of two hundred ($200) dollars, and twenty dollars interest there- on, together with three dollars costs incurred in this proceeding, said principal, interest, and costs amounting to the sum of tzvo hundred and twenty-nine dollars. Judgment entered July 10, J907. (All courts.) NOTE.— Calif onii a, C. C. P., sees. 1132-1135. Justice's Court. 701 No. 1 1 78. — Judgment — Damages in Lieu of Retxim, [Title of Court and Cause.] In this case, it appearing that the property described in the complaint has been delivered to plaintiff, and the defendant claiming a return thereof, and it appearing that a return cannot be had, judgment is given against plaintiff for $200, the value of said property, and $100 taxed costs. (All courts.) No. 1 179. — Judgment for Defendant. [Title of Court and Cause.] In this case judgment is given against plaintiff and for defend- ant for thirteen dollars, taxed costs. No. 1 180. — Judgment for Plaintiff — Counterclaim. [Title of Court and Cause.] In this case the defendant's counterclaim against plaintiff be- ing equal to plaintiff's demand, judgment is given for plaintiff for nine dollars taxed costs. NOTE.— California, C. C. P., sees. 855, 85S No. 1181. — Judgment for Defendant — Counterclaim. [Title of Court and Cause.] In this case the defendant's counterclaim against plaintiff ex- ceeding plaintiff's demand against him, judgment is given for defendant against plaintiff for two hundred and fifty-three dol- lars, principal, and eighty-four dollars, costs. Judgment $2js Costs 84 $337 NOTE.— California, C. C. P., sees. 855, 856. No. 1 182. — Judgment — Fiduciary Capacity. [Title of Court and Cause.] In this case, it appearing that defendant received of plaintiff the two hundred and seven dollars, in gold coin described in the complaint, as the agent of plaintiff, judgment is given for plain- tiff and against defendant for two hundred and seven dollars i» gold coin, and twelve dollars, costs. yo2 New Book of Forms. Judgment $207 Costs 12 $219 NOTE. — In actions against an agent to recover money received by him for hi^ principal, the judgment must be made payable in the kmd of money or currency received by him: CaL C. C. P., sec. 667. No. 1 183. — Judgment — Fine and Imprisonment. [Title of Court and Cause.] [Title of court, and continue the same as Form No. 1184, down to "Wherefore."] Wherefore, it is by the court here ordered and adjudged that for said offense you, the said R. R., do pay a fine in the sum of $^0, and be imprisoned in the county jail of said San Mateo county until the said fine be paid, not exceeding twenty-five days. Done in open court, etc. NOTE.— California, Pen. a, sec. 1446. No. 11P4. — Judgment — Imprisonment. [Title of Court and Cause.] A complaint, under oath, having been filed in this court on the sixteenth day of July, ipo/, charging said defendant, R. R., of certain public offenses, to wit, battery upon the person of /. D., a misdemeanor, committed on the thirteenth day of July, ipoy, and a warrant of arrest having been duly issued on said sixteenth day of July, igoj, for the arrest of said defendant, and said defendant, R. R., having been duly arrested, and thereafter, on the seventeenth day of July, 1907, tried before this court, with- out a jury, a jury trial having been waived, as provided by law in such cases, and by the court found guilty, as charged in the complaint; and all and singular, the law and the premises being by the court here understood and fully considered, and no suffi- cient cause appearing to the court why judgment should not be pronounced against said R. R. Vvlierefore, it is by the court here ordered and adjudged that for said offense you, the said R. J^., be imprisoned in the county jail of said county of San Mateo, for the term of five months and fifteen days, or that for said offense yon, the said R. R^, be fined one hundred dollars [and be imprisoned until the said fine is satisfied, in the proportion of one day's imprisonment for every dollar of said fine], [The words in brackets to be iTisKrtcd if both fine and imprisonment may bo inflicted.] Justice's Court. 703 Office of Justice of the Peace, Pulgas Township, County of San Mateo, — ss. I, G. W. F., justice of the peace of the county of San Mateo, do hereby certify the foregoing to be a full, true, and correct copy of the judgment duly made and entered on the minutes of the said justice's court in the above-entitled action, on the nine- teenth day of July, igoj. Attest my hand, at the township of Pulgas, in the county of San Mateo, this twentieth day of July, igoj. ISjOTE. — In California, when the defendant pleads guilty, or is con- victed, the court rcndors judgment of fine or imprisonment, or both. A judgment of fine may also direct that he be Imprisoned until the tine is satisfied: Pen. Code, sees. 1445, 1446. No. 1 185. — Judgment — PlaintifF — Money Demand. [Title of Court and Cause.] In this case judgment is given for plaintiff for one hundred and seventy dollars and ten cents principal and interest, and nine dollars taxed costs. Judgment $iyo to Costs p 00 $i/'9 10 No. 1 186. — Judgment — Personal Property. [Title of Court and Cause.] In this case judgment is given against defendant and for plain- tiff for the possession of all personal property described in the complaint herein, and one hundred dollars damages for the de- tention thereof by defendant, and thirty dollars taxed costs. In OTE.— California, C. C. i ., sec. 667. No. 1 187. — Judgment — Value — Personal Property. [Title of Court and Cause.] In this case, it appearing that the delivery of the property de- scribed in the complaint cannot be had, judgment is given for plaintiff for ta'o Inindred and ninety-nine dollars, the value there- of, and one hundred dollars taxed costs. Judgment ^200 Costs joo $399 NOTE.— California, C. C. P., sec. 6G7. 704 New Book of Forms. No. 1 1 88. — Judgment — Return — Property. [Title of Court and Cause.] In this case, it appearing that the property described in the complaint has been delivered to the plaintiff, and the defendant claiming a return thereof, judgment is given against plaintiff for the return of said property to defendant, and $100 damages for taking and withholding the same, and $p taxed costs. NOTE.— Calif oniia, C. C. P., sec. 667. No. 1 189. — Juror — Summons. [Title of Court and Cause.] To Mr. G. W. W. : You are hereby notified and required to attend before C. K., one of the justices of the peace of Butte Creek township, on the third day of April, igoj, at nine o'clock A. M., at the courtroom of said justice of the peace, in said township, in the county of Colusa, then and there to serve as a juror. By order of C. K., Esq., justice of the peace. Herein fail not, under the penalty of the law. NOTE. — California, C. C. x*., sec. 230. In all states the form of notice fsnmmons) to a person to appear and serve as a juror is substantially the same. No. 1 190. — Memorandum — Costs and Disbursements. [Title of Court and Cause.] DISBURSEMENTS. Constable's fees, serving process $ 2 00 Justice's fees 5 00 Juror's fees, one day 24 00 Witnesses' fees, as follozvs; J. S., one day 2 00 R. J., one day 2 00 J. R., one day 2 00 Total $jy 00 NOTE. — It is nnncccpsary to file a bill of costs in proceedings in a juftiee 's court. When lawyers appear in these courts they sometimes file them. It is good practice to do so. The justice is furnished with written memoranda of the prevailing party's disbursements Tn thg superior courts it is usually necessary to file and verify a cost bill: See Superior Courts. Justice's Court, 705 No. iigi. — Notice to Parties — Time and Place of Trial. In the Justice's Court of First Tozvnship in the City of Sacro- mento. State of California. To P. M., Plaintiff, and to M. P., trefendant: You and each of you will please take notice that the under- signed justice of the peace, before whom the above-entitled cause is pending, has set for hearing the demurrer of M. P., defendant, filed in said cause [or has set the said ca^ise for trial, as the case may be], before me at my office in said township [or city, or city and county], at ten o'clock A. M., on the i8th day of June, 190'J. Dated this "jth day of ]une, 190J. A. B., Justice of the Peace. NOTE.— California, C. C. P., sec 850, No. 1 192. — Notice — Case Transferred. [Title of Court and Cause.] You will please take notice, that the above-entitled case was, on the first day of April, ipo6, by S. C, Esq., justice of the peace of B. Township, county of C, transferred to my court for trial ; and you will please take notice that the undersigned justice of the peace, before whom the above-entitled action is pending, has set said cause for trial, before himself at his office in township H., in the town of S., in said county, on Monday, April 6, ipo6, at the hour oi 10 o'clock A. M. J. P. No. 1193. — Notice to Attorney — Time and Place of TriaL [Title of Court and Cause.] To A. B., Attorney for Plaintiff, or to C. D., Attorney for De- Please take notice [the same as in No. 1192, and conclude as follows] : Has set the said action for trial at my office in said township at 10 o'clock A. IVI. on the iSth day of June, 1906. NOTE. — California, C. C. P., sec. 850, New Forms — 15 -7o6 New Book of Forms. No. 1194. — Notice — AppeaL [Title of Court and Cause.] You will please take notice, that the defendant in the above- entitled action hereby appeals to the superior court of the county of Sacramento, from the judgment therein made and entered in the said justice's court, on the ^rst day of August, 1906, in favor of said plaintiff and against said defendant, and from the whole thereof. This appeal is take on questions of both law and fact; or [This appeal is taken on questions of law; or this appeal is taken from that part of the judgment awarding defendant costs]. To the Justice of said Justice's Court, and /. N., Attorney for Respondent : Service of a copy of the within notice of appeal is hereby ad- mitted, after filing, this second day of August, 1906. NOTE. — In California a party dissatisfied with the judgment of a police or iustiee's court may appeal to the superior court. The appeal is taken bv filing a notice of appeal and serving a copy on the other party. The notice must state whether the appeal is from the whole or part of the judgment, and if from a part, stating what part, and whether taken on questions of law or fact, or both: C. C. P., sec 974. No. 1 195. — Notice — Officer, to — Laborer's Claim. [Title of Court and Cause.] To H. W.. Esq. [Sheriff or Constable] : You will please take notice, that within sixty days next pre- ceding the date of the levy by you of the writ of attachment against the property of said defendant in this action, / rendered labor as a miner for said defendant, and there is due me from him for said labor the sum of one hundred dollars; and you are hereby directed to withhold said amount from the proceeds of said property attached, and to pay the same to me on said labor account. (All courts.) NOTE.— California, C. C. P., sees. 1204-1207. No. 1 196. Notice to Creditor or Defendant — Laborer's Claim. [Title of Court and Cause.] To W. S.. Defendant [or to the Plaintiff Creditor]: You will please take notice, that /. W. has presented a claim, under oath, for one hundred dollars, zvhich he claims is due to him from the defendant herein for labor as a miner, within sixty days next preceding the levy of the attachment writ herein, (All courts.) NOTE.— California, C. C. P., sees. 1204-1207. Justice's Court, 707 No. 1 197. — Notice to Officer — Laborer's Claim Disputed by Creditor. [Title of Court and Cause.] To H. W. [Sheriff or Constable]: You will please take notice, that I dispute the entire claim made by /. W., for one hundred dollars, for labor claimed to have been performed by him for the defendant as a miner, in this action, within sixty days next precedinp^ the date of the levy by you of the writ of attachment herein. No part of said claim is justly due from the defendant to the claimant. (All courts.) NOTK— California, C. C. P., sees. 1204-1207. No. 1 198. — Notice to Officer — Laborer's Claim Disputed by Defendant. [Title of Court and Cause.] To H. W. [Sheriff or Constable] : You will please take notice, that T dispute the entire claim made by /. W., for one hundred dollars, for labor claimed to have been performed by him for me: as a miner; you are notified that I am not indebted to him to the value of anything on account of labor performed within sixty days next preceding the date of the levy by you of the writ of attachment herein. No part of said claim is justly due from me to said claimant. (All courts.) NOTE.— California, C. C. P., sees. 1204-1207. No. 1 199. — Notice to Claimant — Claim is Disputed. [Title of Court and Cause.] To /. IV. : You are hereby notified, that the defendant [or plaintiff] here- in disputes the validity of your claim for one hundred dollars notice of which you have heretofore served me with ; and un-^ less you commence action to test the validity of your claim, and prosecute the same with reasonable diligence, within ten davs from the date hereof, it will be barred as a preferred claim un- der the writ of attachment [or execution] herein. (All courts.) NOTE.— California, C. C. P., sees. 1204-1207. j7o8 New Book of Forms, No. 1200, — Notice to Plaintiff — Arrest. [Title of Court and Cause.] You will please take notice, that I have, in obedience to the order indorsed on the summons in this action, arrested the de- fendant, and he is now in my custody. Indorsed : Service of the within notice admitted this third day of July, ipo6. [Or by the plaintiff, if he has not appeared by attorney,] (All courts.) NOTE. — California, C. C. P., sec 865. The officer mnst, in addition to the above notice, indorse on the summons, and subscribe a certificate stating the time of serving the summons, the time of the arrest, and the time of his giving notice to the plaintiff. No. 1 20 1. — Notice to Plaintiff — Substitution of Party De- fendant. [Title of Court and Cause.] You will please take notice, that defendant will, on the third day of April, A. D. ipo6, at the office of B. R., Esq., justice of the peace, at the town of C, county of M., at the hour of ten o'clock A. M. of that day, apply to said justice of the peace for an order substituting- H. N. as defendant in this action, in place of defendant, and discharging said defendant from liability in said action. Said motion will be based on the pleadings herein, and the afH- davit of defendant, a copy of which is served herewith, and will be made on the ground that defendant has no interest in the re- sult of said action, and that said H. N. is the real party in interest therein. (All courts.) NOTE. — California, C. C. P., sees. 385-387. No. 1202. — Notice, Motion of — Set Aside Default. [Title of Court and Cause.] Ycu will please take notice, that upon affidavit, a copy of whidi is herewith served, T will move said court at its office in the town of Loyalton, in Valley township, county of Sierra, on the seventh day of July, igoy, at the hour of lo o'clock A. M. of said day, or as soon thereafter as counsel can be heard [or as soon there- after as the defendant can be heard] ; that the judgment entered bv default against the said defendant, and all subsequent pro- ceedings thereon, be set aside, upon the ground that the summons*' Justice's Court. 709 herein zvas not personally served, and defendant's time for an- swering had not elapsed when said judgment was entered [or any other ground imthin the statute]. The said motion will be based on the affidavit of the defendant herein. NOTE.— California, C. C. P., sec. 859. No. 1203. — Notice, Decision of. [Title of Court and Cause.] You will please take notice, that the defendant's demurrer to the complaint herein has been sustained and you are given two days in which to amend. [On the back of all notices is usually indorsed: "Service of the within admitted this third day of January, /po(5."] (All courts.) NOTK.— California. C. 0. P.. spc. ini4. This mav not W strictlv apr>Ii''!blp to jnsticps' courts hut the writer thinks it ought to be tiphcld in the spirit of Code of Civil Proeedure. section S.'SO. If not, thf^n why require notice of the d-^.y snt for trial? Knowledge of the decision may be as valuable as the other notice. No. 1204.— Notice— Defendant Excepts to Sufficiency of Sure- ties. [Title of Court and Cause.] E. T., Esa.. Constable: You will please take rot:ce that the defendant in this action hereby excepts to the sufficiency of the sureties upon plaintiff's undertaking filed herein. (All courts.) NOTE. — California, C. C. P., Attachment, sec. 867. Attachment on Vessels, sec 821, On Appeal to Superior Court, sec 978. No. 1205. — Notice to Defendant — Kis Sureties Must Justify. [Tit^e of Court and Cause.] You will please take notice, that the defendant's sureties on his undertaking herein, on release from arrest [or in other cases] will be required to justify. (All courts.) NOTE. — California, C. C, P., sec 978. Attachment, sees. 554, 555. On Appeal, sees. 978-992. 7IO New Book of Forms. No. 1206. — Notice to Plaintiff — Justification — Sureties. [Title of Court and Cause.] You will please take notice, that defendant's sureties on his undertakinc:, oriven on appeal herein, [or in any other matter], will justify before A. B. C, Esq., the justice who issued the said order of arrest, at his office in the town of Downieville, on Mon- day, August 2, ipo6, at 2 o'clock P. M. (All courts.) KOTE.— California, C. C. P., sec. 978. No. 1207. — Notict — Application for Discharge from Imprison- ment. [Title of Court and Cause.] You will please take notice, that on Friday, the tenth day of August, A. D. IQ06, at the hour of ten o'clock, A. M., or as soon thereafter as the matter can be heard, I will apply to the Honor- able /. H., judge of the superior court of the city and county of San Francisco, at the courtroom of his said court in the New City Hall, in said city and county, for an order to be discharp-ed from imprisonment in the county jail of said city and county, where I am confined as a prisoner under civil process, issued out of the justice's court of said city and county, in an action in said justice's court entitled A. B. v. B. F. Dated and signed by the prisoner, and addressed to and served on either the plaintiff in the justice's court, or his agent, or his attorney of record. (All courts.) NOTE.— California, C. C. P., sees. 1143-1153. No. 1208. — Notice to Plaintiff — ^Adverse Claim. [Title of Court and Cause.] You will please take notice that defendant will, on the jd day of April, A. D. ipo^, at the office of E. R., Esq., justice of the peace at the town of C, county of M., at the hour of ten o'clock A. M. of that day, apply to said justice of the peace for an order substituting H. N. as defendant in this action, in place of de- fendant, and discharging said defendant from Hability in said action. Said motion will be based on the pleadings herein and the afi&davit of defendant, a copy of which is served herewith, and Justice's Court. 711 will be made on the ground that defendant has no interest in the result of said action, and that said H. N. is the real party in irn terest therein. [Indorsed: Service of the within and of a copy of the affidavit of /. A^. admitted this 26th day of March, ipo/.] (All courts.) NOTE.— California, C. C. P., sec 386. No. i2og. — Notice to Occupant — Real Estate. [Title of Court and Cause.] Notice to Whom It May Concern : By virtue of a writ of execution of which the annexed is a copy, I have duly levied on the hereinafter described real prop- erty, and all the right, title, and interest therein and thereto, be- longing to A. B. C, the therein named defendant, or to which he may be entitled to, situate, lying, and being in the county of Ala- meda, state of California, standing of record in the office of the county recorder in and for said county in the name of A. B. C. [or in the name of E. F. C, etc], and bounded and described as follows, viz. [description]. (All courts.) NOTE. — This notice is sometimes served when property is standing of record in the name of F. A., but really in trust for .\. B. C, a judg- ment debtor. It is not required by law, but the officer holding the writ will, at the request of plaintiff, serve the writ upon the occupant, and sell the property under the writ. When he receives the deed, ac- tion is brought to eject the occupant, and if it can be established that the property was held in trust by F. A. for A. B. CL, A. B. C. 'a title has vested in the purchaser. No. 12 10. — Order — Arrest Indorsed on Summons. [To be indorsed on the summons, if the defendant is subject to arrest in the action.] State of California, County of Napa, — ss. The People of the State of California, to the Sheriff or any Con- stable of the County of Napa: You are hereby commanded to arrest the within named de- fendant, /. C. W., and bring him before me forthwith, to answer the plaintiff's complaint in this action. Given under my hand, this third day of June, ipo6. 712 New Book of Forms. NOT"K. — The smmmoTis is directed to the defendant, and si^ed by the justice, and coDtains: 1. The title of the court, name of the county, and city or townslfip in which the action is commenced, and the names of the parties; 2. A direction that the defendant appear and answer before the justice, at his office, at a time stated, as specified in section 845, Code of Civil Procedure; 3. A notice that unless defendant so appear and answer, the plaintiff will take judgment for any money or damages demanded in the complaint or arising upon contract, or will apply to the court for the relief demanded in the complaint. If the plaintiff appears by attorney, the nnme of the attorney must be in- dorsed upon the summons: Cal. C. C. P., sec. 844. No. 121 1. — Order — Commitment on, fTitle of Court and Cause.] The People of the State of California, to the Sheriff of the County of Tehama: An order having been this day made by me, that /. D. be held to answer upon a charge of [state briefly the nature of the of- fense] committed in said township and county, on or about the £fth day of August, 1905, you, the said sheriff, are commanded to receive him, the said /. D., into your custody, and detain him until he is legally discharged. And I hereby order that the said /. D. be admitted to bail in the sum of $500. NOTE.— Cal., Pen. C, sec. 877. No. 1212. — Order, Inspection for. [Title of Court and Cause.] To A. L. P., Defendant [or Plaintiff] : You will forthwith [or at a time stated] exhibit the original account set up in your answer to the plaintiff, and furnish him with a copy of the same. [// this order is not obeyed, the said account cannot be given in evidence.'] (All courts.) NOTE.— California, C. C. P., sec. 1000. No. 12 13. — Order — Intervention Allowed. [Title of Court and Cause.] The complaint of P. K. N. having been presented to me, and leave asked to file the same, as his complaint of intervention herein, and it appearing that good cause exists therefor, it is ordered that leave be granted to file the same, and that said P. K. N. be permitted to intervene in said action. (All courts.) NOTE.— California C C. P, sec. 387. Justice's CouRt. 713 No. 1 2 14. — Order — Examination of Party. [Title of Court and Cause.] The People of the State of California, to G. H. McC, Greeting: Whereas, it has been alleged and duly made to appear to the undersigned, one of the justices of the peace of said township, by the affidavit of plaintiflF, that an execution has been duly is- sued out of this court against property of yours, the said de- fendant in the above-entitled action, and is rtill in force and re- mains unsatisfied ; and that you have in your possession or under your control certain debts, moneys, effects, credits, and other property, which you unjustly refuse to apply toward the satis- faction of said judgment. You are therefore commanded to be and appear before me (or before J. B., Esq., who is appointed referee for the purpose of said examination), at my office, in said Second Township, in said Nci'ada county, on the tenth day of September, igoj, at twelve o'clock M., then and tliere to be examined on oath, con- cerning the same. (All courts.) NOTE.— California, C. a P., sees. 714, 721. No. 12 1 5. — Order — Examination — Debtor of Defendant. [Title of Court and Cause.] The People of the State of Calif omia, to E. P,. Greeting: Whereas, it has been alleged and made to appear to the under- signed, one of the justices of the peace of said township, by the affidavit of plaintiff, that an execution has been duly issued out of this court against the property of the defendant in the above- entiiled action, and is still in force, and that you have in your possession or under your control certain debts, moneys, effects, credits, and other property, owing to or belonging to the said defendant. You are therefore commanded to be and appear before me (or before J. B., Esq., zvho is appointed referee for the pxirposc of said examination), at my office, in said township, in said county, on the third day of August, 1907, at tvoo o'clock P. M., then and there to be examined on oath concerning the same. And you are further commanded not to pay, transfer, return or otherwise part with or dispose of any such debts, moneys, effects, credits, or other property, until duly released according to law. Given under my hand, etc ji^ New Book of Forms. I hereby certify that 1 have served the within order by deliv- ing a true copy thereof to E. P., the person to whom the same is directed personally, this second day of August, ipo/, at Bloom- Held township, in tlie county of Nevada. Fees, $1.30. (All courts.) NOTR — California, C. C. P., see. 717. No. 12 16. — Order — Arrest by Sureties. [Title of Court and Cause.] You will please take notice, that the undersigned, the sureties on the bail of defendant on his release from arrest, as appears from the undertaking, of which the within is a certified copy, command you to forthwith arrest the within named defendant and detain' him in your custody until he is discharged by law. (All courts.) NOTE. — California, C. C. P., sec. 489. The bail may at any time or place before their discharge arrest the defendant, or they may, by written order indorsed on a certified copy of the undertaking, order tho sheriff to make the arrest. No. 1217. — Order, Substitution of. [Title of Court and Cause.] On reading and filing the affidavit of /. N., filed herein, and sufficient cause existing therefor, it is ordered that defendant herein, /. N., be discharged as defendant and from all liability herein' and that H. N. be substituted in his place, upon said /. N. delivering the stallion "H. L. B." to W. F., the sheriff of M. county. (All courts.) NOTE.— California, C. C. P., sees. 385, 386. No. 1218. — Order, Docket. [Title of Court and Cause.] W. P., the sheriff of the county of M., having filed with me a receipt' acknowledging that he has received from /. N. the stal- lion "H. L. B.," in controversy in this action, it is ordered that J. N. be and he is discharged from this action as a defendant therein, and from all liability therein, and that //. N. be and he is hereby substituted defendant in place of said /. N. HOTE. — California, C. C. P., sec. 386. Justice's Court. 71 No. 1 2 19 — Order, Intervention Allowing — Docket. [Title of Court and Cause.] The complaint of P. K. N. having been presented to me, and leave asked to file the same as his complaint of intervention herein, and it appearing that good cause exists therefor, it is ordered that leave be granted to file the same, and that said P. K. N. be permitted to intervene in said action. NOTE.— California, C. C. P., sec. 387. No. I220. — Order — Opening Default. [Title of Court and Cause.] The defendant having shown good cause therefor, it is ordered that his default in not answering the complaint herein be, and the same is, hereby set aside, and the judgment against him by default vacated, on his payment into court within one hour of ten dollars costs for the benefit of the plaintiff. It is further or- dered that the defendant may have twenty-four hours from 12 o'clock M. of this day to answer the complaint herein. NOTE.— California, C. C. P., sec. 859. No. 122 1. — Order Bringing in Paiiy — Docket Entry. [Title of Court and Cause.] On reading and filing the application of /. A. to be made a party plaintiff herein, and it appearing to my satisfaction that good cause exists therefor, it is ordered that the complaint, and summons be amended by adding his name as a party plaintiff. NOTE.— California, C. C. P., 389. No. 1222 — Order — Release Levy, [Title of Court and Cause.] The sheriff of the city and county of San Francisco is hereby directed to release from levy all the property seized by him by virtue of the writ of execution issued in the above-entitled suit. (All courts.) NOTE. — Such orders are obeyed bv officers upon the principle that the person who gives an order may revoke it in the absenee of inter- vuiing rights of others of which the officer has notice. 7i6 New Book of Forms. No. 1223. — Order, Execution Recalling. [Title of Court and Cause.] The defendant having paid into court the sum of $10 costs as ordered herein, and the judgment by default herein being va- cated, the writ of execution issued herein on the sd day of May, igo6, is hereby vacated and ordered to be forthwith returned. NOTE. — See note to preceding form. No. 1224, — Return of Search-warrant — Inventory Attached (or Written on the Back). State of California, County of Sacramento, — ss. I, the undersigned, police officer, make this, my return, to the within search-warrant. I received said warrant on the jd day of June, igo6, and under its authority I, on the day of its date, diligently searched the premises described as follows, to wit [de- scription], and I there discovered and seized all the property described in the inventory accompanying this return. Inventory [zvhich may, if not long, be indorsed on the back of the warrant^. [Description of property seized.] City and County of San Francisco — ss. I, P. P., the officer by whom this warrant was executed, here- bv state that the above inventory contains a true and detailed account of all the property taken by me on the warrant, and that said inventory was made publicly in the presence of the person, A. B., from whose possession it was taken by me, and in the presence of E. F., the applicant for the warrant [if the said A. B. and E. F. were present]. Verified as follows : "I do solemnly swear that what is stated in this affidavit is true." NOTE.— California, Pen. C, sees. 1523, 1538. No. 1225, — Return of Summons — County, etc. [Title of Court and Cause.] If the defendant is a county, city or town, say: "Personally served the same on the 8th day of November, i()o6, on tlie de- Justice's Court. 717 fendant, the county of Santa Clara, by delivering to G. P. C, the president [or chairman] of the board of supervisors of said county, personally," etc. (All courts.) NOTE.— California, C. C. x'., sec. 415. No. 1226. — Return — Summons vs. — Corporation. [Title of Court and Cause.] [If the defendant is a corporation, the return or affidavit should state:] And personally served the same on the Jth day of November, 190J, on the G. IV. and S. M. D. Company, defend- ant named in the summons, by delivering to /. T. D., the presi- dent [or other head of the corporation, secretary, cashier, or managing agent thereof], personally, etc. (All courts.) NOTE. — California, C. C. P., sec. 415. No. 1227. — Return — Service of Notice — Case Set for Trial or Hearing of Demurrer. [Title of Court and Cause.] I hereby certify that I served the attached notice of time and ■place of the trial [or hearing of demurrer] on the plaintiff, A. B. [or defendant], by delivering to him personally at C. D., in said county and township, on the 8th day of June, igoj, a copy of said notice. NOTE. — See affidavit of service, or certificate of service. The forms are the same in all courts except as to time. No. 1228. — Return — Summons — County or City, etc [Title of Court and Cause.] [If the defendant is a county, city, or town, say:] Personally served the same on the eighth day of November, IQOJ, on the de- fendant, the county of Santa Clara, by delivering to G. P. C, the president [or chaimian] of the board of supervisors of said county, personally, etc. (All courts.) NOTE. — California, a a P., see. 415. 7i8 New Book of Forms. No. T22g. — Return — Summons — On Arrest. [Title of Court and Cause.] [After stating the sennce of sicnimons and copy of the com- plaint add:] And at the same time and place, by authority of the order of arrest indorsed on said summons, I arrested the said defendant, and he is now in my custody ; and immediately after said arrest, to wit, at two o'clock P. M. of the same day I per- sonally <^ave notice of said arrest to the plaintiff herein. (All courts.) NOTE.— California, C. C. P., sec 415. No. 1230 — Return — Summons. [Title of Court and Cause.] I hereby certify that I received the within [or annexed] sum- mons on the sixth day of October, IQOJ, and personally served the same on the eighth day of November, ipoy, on A. B., the de- fendant, named in said summons, by delivering to him, person- ally, in the city of Sacramento, county of Sacramento, a copy of said summons. (All courts.) NOTE.— California, C. C. P., sec. 415. No, 1 23 1. — Return of Summons — Minor Defendant. [Title of Court and Cause.] [If the defendant is a minor, the affidavit or return should state:] Personally served the same on the 8th day of November, jgo6, on A. B. B., the minor defendant named in the summons, by delivering to said A. B. B., personally, in the city of, etc., a copy of said summons attached to a true copy of the complaint in the action. And at the same time and place I personally served the said summons on A. B. B., the said minor defendant, by personally delivering to his father, C. A. B. [or mother, or guardian, or if there be none, to the person having the care or control of the defendant, or with whom he resides, or in whose service he is employed], in the said city, etc., a copy of said summons, attached to a true copy of the complaint in the action. (All courts.) NOTE.— California, C. C. P., see. 415. JusTia;'s Court. 719 No. 1232. — Return — GeneraL ' [Title of Court and Cause.] I hereby certify that I have this twelfth day of May, igoj, re- tiunied the within execution satisfied. (All courts.) NOTE,— California, C. C. P,, sec 415. No. 1233. — Return — Ebcecution — No Property Found- [Title of Court and Cause.] I hereby certify that I received the annexed execution on the third day of August, A. D. 1907, and, after due and diligent search and inquiry, I am unable to find any property belonging to the defendant therein named in said county. (All courts.) Note. — It may be made returnable not less than ten nor more than sixty days after its receipt hj the office: Cal. C. C. P., sec 6&3. No. 1234. — Return — Ebcecution Satisfied, [Title of Court and Cause.] I hereby certify that I received the annexed execution on the nin4h day of August, IQOJ, and by virtue thereof recovered from the therein named judgment debtor the sum of $S97, and after deducting my fees and commission of $27.50, I applied the bal- ance of $^68.50 in satisfaction of said execution, as will more fully appear by receipt of the plaintiff indorsed thereon and made a part hereof, and I hereby return the said execution satisfied. (All courts.) NOTE. — California, C. C. P., sec. 683. No. 1235. — Return — Attachment of Personalty. [Title of Court and Cause.] Office of the Sheriff, Of the City and County of San Francisco, — ss. Py virtue of the annexed writ, I duly attached all moneys, g^oods. credits, effects, debts due or owing, and all other personal property belonging to the defendants therein named, or to cither 720 Nicw Book of Forms, of them, in the possession or under the control of /. D., by serv- ing upon the said /. D. personally, in the city and county of San Francisco, on the sixteenth day of August, ipo§, at eleven o'clock A. M., a copy of said writ, with a notice in writing, that such property was attached in pursuance of said writ, and not to pay over or transfer the said property to anyone but myself. State- ment demanded. [Here state answer of person served, as, "and the said J. D. gave me a written a^knozvledgment that he was indebted to de- fendant herein in the sum of one thousatui dollars."] (All courts.) NOTE. — California, C. C. P., sec. 683. No. 1236. — Return — Attachment of Personalty. [Title of Court and Cause,] Office of the Sheriff, Of the City and County of San Francisco, — ss. By virtue of the annexed writ, I duly attached all moneys, goods, credits, effects, debts due or owing, and all other personal property belonging to the defendants therein named, or either of them, in the possession or under the control of the parties herein- after named, by serving upon each of them respectively, person- ally, in the city and county of San Francisco, at the times set opposite their respective names, a copy of said writ, with a notice in writing that such property was attached, in pursuance of said writ, and not to pay over or transfer the said property to anyone but myself. Statements demanded. Answers as hereinafter mentioned. NAMKS. TIME OF SERVICE. ANSWERS. /. D. August j8, 1905. [Here sUte anfiwer of /. D.J (All courts.) NOTE.— California, C. C. P., sec, 683. No. 1237. — Return — Sale of Real Estate, [Title of Court and Cause.] Office of the Sherifif, Of the City and County of San Francisco, — ss. I, A. B. C, sheriff of the city and county of San Francisco, do hereby certify : That, by virtue and in pursuance of the annexed order of sale, I advertised the property described in said order, and as follows. Justice's Court. 721 to wit [description], to be sold by me in front of the City Hail, in the city of San Francisco, on the first day of April, i^oj, at twelve o'clock, noon ; that previous to said sale I caused due and legal notice thereof to be published once in each week for three weeks successively, immediately before said sale, in the D. E. B., a daily newspaper published in the city and county of San Fran- asco, and caused said notice to be posted in three of the most public places in the city of San Francisco for the same period preceding such sale, and that on the Urst day of April, jpo^, the day on which said premises were so advertised to be sold, as afore- said, I attended at the time and place fixed for said sale, and exposed the said premises for sale in one parcel, at public auc- tion, according- to law, to the highest bidder for cash. United States gold coin, when /. D., being the highest bidder therefor, the said premises were struck off by me to the said /. D. for the sum of one tlwusand dollars, gold coin, of the United States, which was the whole price bid, and which I acknowledge to have received; and that I delivered to said purchaser a certificate of said sale, and filed a duplicate thereof in the ofiice of the county- recorder of the said city and county. (All courts.) NOTE.— California, C. C. P., sec. 683. No. 1238. — Return of Attachment or Execution — Levy on Credits, etc. [Title of Court and Cause.] By virtue of the annexed writ, I duly attached all moneys, goods, credits, effects, debts due or owing, or any other personal property in the possession or under the control of the parties hereinafter named, at the time set opposite to their respective names, belonging to the defendants named in said writ, or to either of them, by delivering to and leaving with each of said I)artics hereinafter named, personally, in the county of Sacra- mento, a copy of said writ, with a notice in writing that such property was attached, and not to pay over or transfer the sajne to anyone but myself. Statement demanded. Names of Parties Served as Aforesaid. W. J. E. & Co. Date and Ti me of Service. August p, /pocJ. Ans-wers. They owe defendant one hundred dollars for work and labor dur- ing January, 1006' (All courts.) New Forms — 16 722 New Book of Forms. NOTE. — Cal. C. C. P., sec. 559. If the writ is for attachment, the return must be made twenty days after its receipt. If for levy under execution, then it must be returned within the life of the execution, to wit. not less than ten nor more than sixty days from its reeeipt by the odcer: Calif oruia, C. C, P., see. 683. No. 1239. — Return — Attachment, or Execution — Levy on Shares in Corporation, [Title of Court and Cause.] By virtue of the annexed writ I duly attached all stock or shares, or interest in stock or shares, of the hereinafter named corporations, belonging to the defendants named in said writ, or to either of them, by serving upon each of the hereinafter named parties, personally, in the city of Sacramento, county of Sacror- mento, at the times set opposite their respective names, a copy of said writ, with a notice in writing, notifying each of said cor- porations respectively that such stock or interest of said defend- ants, or either of them, was attached, and not to pay over or transfer the same to anyone but myself. Statement demanded. The answers were as set opposite the respective names of said corporations. Names of the Mining Com- panies, and of '.he Parties Served as Aforesaid. Blac^ Frince. Time of Service. Augtist 9, iQo6- Answers. One hundred shares stock standing in defendant 's name on books of corpo- ration. (All courts.) NOTE. — California, C. C. P., sec. 559. No. 1240. — Stipulation to Transfer Action. [Title of Court and Cause.] It is hereby stipulated that this case may be transferred to /, S., Esq., justice of the peace of D., B. township, S. county, for trial upon the ground that the title to real property is involved in it. NOTE. — California, C. C. P., sees. 836-838. Jurisdiction to transfer does not give jurisdiction to the court to which it is transferred, nor can a stipulation give jurisdiction to a justice of the peace to trans- fer. The facts must appear by the answer in the case, or in the jus- tice's docket sent up with his certificate. Justice's Court. 723 No. 1 241. — Stipulation as to Facts. [Title of Court and Cause] It is stipulated between the parties hereto as follows: A. B., the plaintiff, was on the first day of May, 190J, a real estate agent. At the same time C. D., the defendant, owned a tract of land in said county and township ; that both plaintiff and defendant re- side in said township ; that on said day it was verbally agreed between plaintiff and defendant that if plaintiff within three months would find a purchaser who would pay ten thousand dol- lars for said land, that defendant, on demand, would pay plain- tiff two hundred and fifty dollars; that on the third day of June, igoj, plaintiff found a purchaser, to whom defendant, on Jxaxe 10, igoj, granted said land for ten thousand dollars ; that on the tenth day of said month of June, plaintiff demanded of defendant txvo hundred and fifty dollars, which defendant refused to pay, and never has paid. It is further stipulated that this controversy shall be and the same is hereby submitted for judgment without further testimony. State of California, County of Lake. A. B. and C. D., being each duly sworn, say each for himself and not one for the other, that the statements contained in the foregoing stipulation are true, and occurred precisely, as therein stated : that this proceeding is instituted in good faith to deter- mine the rights of said parties. NOTE.— California, C. C. P., sec. 1139. Such contracts are void ■under the Civil Code of California, unless evidenced by written ;!ontraet: McCarthy v. Loupe, 62 CaL 299; Schueler v. Farquharson, 11 P. C L. J. 24; Cal. C. C, sec 1624. No. 1242. — Subpoena. [Title of Court and Cause.] The People of the State of California Send Greeting to H H B and W. H. K.: We command you that you appear and attend before the un- dersigned, one of the justices of the peace of said township, in said Sacramento county, at his otRce, southeast corner of Sixth and A streets, Sacramento, on the seventeenth dav of May, 190J, at one o'clock P. M.. then and there to testify in the above-en- titled action, now pending before said justice on the part of tlie 724 New Book o^ Forms. defendant; and for a failure to attend, you will be deemed guilty of a contempt of court, and liable to pay all losses and damages sustained thereby by the parties aggrieved, and forfeit one hun- dred dollars in addition thereto. (All courts.) NOTE. — If the snbpoeiia ia served by an officer the usual return is indorsed on it. If by a private person, then his affidavit of service is indorsed. A justice of the peace may issue a subpoena to any part of the county. It must be issued without a blank left to be fiUed by another; other- wise, it is void: Cal C. a P., sees. 919, 920. No. 1243. — Subpoena — Criminal. [Title of Court and Cause.] The People of the State of California, to S. H. and A. J.: You are commanded to appear before W. A. H., a justice of the peace of Hot Springs township, in the county of Napa, at the office of said justice, in said township, on the third day of June, igoj, at ten o'clock ^. Af., as a witness in a criminal action, prose- cuted by the people of the state of California, against /. S., on the part of the people. [If documents are wanted as evidence, add, and you are required, also, to bring with you the following — describing intelligibly the books, papers, or documents required.] INDORSEMENT OF SERVICE. I hereby certify that I have served the within subpoena by showing the within original to the within named S. H. and A. J. personally, and informing each one of them of the contents thereof, on or prior to the third day of June, igoy, at the county of Napa. NOTE. — A magistrate before whom a complaint is made, for wit- nesses in the state, may subpcena them: Cal. Pen. C, 1326. The form of subpoena is given by statute: Id., sec. 1327. No. 1244. — Summons. [Title of Court and Cause.] The People of the State of California Send Greeting to /. B., De- fendant : You are hereby directed to appear before me at my office, at Brown's Flat, in said township, and answer the complaint in an action entitled as above, brought against you in the justice's court of Sears township, county of Sierra, state of California, within iive days after the service on you of this summons — if served Justice's Court. 725 within the city and county, township or city in which this action is brought ; or, if served out of said township or city but in this county, within ten days, or within tzuenty days if served else- where. And you are hereby notified that unless you appear and answer as above required, the said plaintiff will take judgment for any money or damages demanded in the complaint, as arising upon contract, or he will apply to the court for the relief demanded in the complaint. Given under my hand this jrf day of June, A. D. ipo/. NOTE. — Califorma, C. O, sees. 844, 845. No. 1245. — Summons, Alias. [Title of Court and Cause.] The People of the State of California Send Greeting to /. B., De- fendant : You are hereby directed to appear before me at my office, at Brcnim's Flat, in said township, and answer the complaint in an action entitled as above, brought against you in the justice's court of Sears toivnship, county of Butte, state of California, within five days after the service on you of this alias summons — if served within the city and county, township or city in which this action is brought ; or, if served out of said township or city but in this county, within ten days ; or within twenty days if served else- where. The original summons in tliis action has been returned without being served. And you are hereby notified that unless you appear and answer as above required, the said plaintiff will take judgment for any money or damages demanded in the complaint, as arising upon contract or he will apply to tlie court for the relief demanded in the complaint. Given under my hand, this ^d day of June, A. D. 1907. NOTE.— California, C. C. P., sees. 408, 844-849. No. 1246. — Summons — Order of Arrest on. [To be indorsed on the summons, if the defendant is subject to arrest in the action.] State of California, County of Napa, — ss. The People of the State of California, to the Sheriff or any Con- stable of the County of Napa: You are hereby commanded to arrest the within-named defend- ant, /. C. JJ\, and bring him before me forthwith, to answer the plaintiff's complaint' in this action. NOTK — California, C. C. P., sec. 845, subd. L 726 New Book of Forms. No. 1247. — Summons — Certificate Accompanying. State of California, County of Sail Mateo, — ss. I, H. IV., clerk of the county of San Mateo, hereby certify that C. P. IV., the person who issued and whose name is signed to the annexed summons, was an acting justice of the peace for Red- zvood township, in said county of San Mateo, at the date of said summons. In witness whereof, I have hereunto set my hand and afl&xed the seal of the superior court of the said county of Sa}% Mateo, this loth day of June, igo6. NOTE. — This form is used when a summons is to be served out of the county where the justice resides: CaL C C P., see. 849. No. 1248. — Undertaking — Attachment. [Title of Court and Cause.] Whereas, the above-named plaintiffs have commenced, or are about to commence an action in the justice's court of the first township, in the county of Solano, state of California, against the above-named defendant, upon a contract for the direct pay- ment of money, claiming that there is due to the said plaintiffs, from the said defendant, the sum of two hundred dollars, gold coin, of the United States, besides interest, and an attachment against the property of the said defendant, as security for the satisfaction of any judgment that may be recovered therein, has been demanded by said plaintiffs. Now, therefore, we, the undersigned, residents of the county of Solano, m consideration of the premises, and of the issuing of said attachment, do jointly and severally undertake, in the sum of three hundred dollars, gold coin, and promise to the effect that if the said defendant recovers judgment in said action, the said plaintiffs will pay all costs that may he awarded to the said de- fendant, and all damages zvhich he may sustain by reason of the said attachment, not exceeding the sum of three Juindred dollars, (All courts.) NOTE.— California, C. C. P., see. 867. No. 1249. — Undertaking — Release of Attachment. [Title of Court and Cause.] Whereas, the plaintiff in the above-entitled cause has com- nienced an action in the aforesaid court against tlie above-named Justice's Court. 727 defendants for the recovery of two hundred and fifty (2^0) dol- lars, gold coin of the United States, And whereas, an attachment has been issued, directed to the constable of Pine Grove township, of the county of Monterey, and placed in his hands for execution, whereby he is commanded to attach and safely keep all the property of the said defendants within his county not exempt from execution, or so much thcrc-of at may be sufficient to satisfy the plaintiff's demand therein stated, in conformity with the complaint, at two hundred and fifty dol- lars, gold coin of the United States, unless the defendants give him security by the undertaking of at least two sufficient sureties, in an amount sufficient to satisfy said demand besides costs [or in an amount equal to the value of the property which has been or is about to be attached], in wliich case to take such undertak- ing. And whereas, the said defendants are desirous of giving the undertaking mentioned in the said writ. Noiv, therefore, we, the undersigned, residents of Pine Grove tozvnship, in tfie county of Monterey, in consideration of the premises, and to prevent the levy of said attachment, do hereby jointly ayid severally undertake in the sum of three hundred (300) dollars gold coin of the United States, and promise to the effect that if the said plaintiff shall recover judgment in said action, zve will pay to the said plaintiff the amount of said judgment, to- gether unth the costs, not exceeding in all the sum of three hun^ dred (300) dollars, gold coin of the United States. (All courts.) NOTE.— California, C. C. P., sec 868. No. 1250. — Undertaking — Appeal from Fine and Imprison- ment, [Title of Court and Cause.] Know all Men by these Presents : That we, J. D., as prin- cipal, and R. R. and £. S., as sureties, are held and firmly bound unto the people of the state of California, in tlie sura of live hun- dred dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Signed with our hands, and sealed with our seals, this fifth day of August, IQ06. The condition of the above undertaking is such, that, whereas, the said /. D. was, on the fourth day of August, igo6, before B. V. M., Esq., a justice of the peace, in and for township of Clarendon, county of Marin, duly convicted of the crime of [stale the crime], as follows : Tlie crime of carrying a concealed weapon; 728 New Book of Forms. or of assault and battery, etc., and upon said conviction, it was ordered and adjudged by the said justice, that the said /. D. pay a fine, the sum of fifty dollars, and that said /. D. be impris- oned in the county jail, in and for the said county of Marin, till said fine be paid, said term of imprisonment not to exceed twenty- five days. And whereas, the said /. D. is desirous of appealing from the decision and judgment of said justice to tlie superior court of the county of Marin; Now, therefore, we, the undersigned, hereby undertake that if the said judgment shall be affirmed, or modified, or the appeal be dismissed by the said superior court, that the said J. D. shall well and tridy pay, or cause to be paid, the fine aforesaid, the sum of fifty dollars, or such part of said fine as the said superior court may direct; if the judgment is affirmed or modified, or the appeal dismissed, or in case the judgment be reversed, and the case re- manded for a new trial, tliat he will appear in the court to which the case may be remanded, and submit himself to the orders and processes thereof, then this obligation to be null atid void, other- wise to be and remain in full force. NOTE.— California, Pea. C. sec. 1273. If the judgment is a fine, the amount may be deposited in lieu of. No. 1251. — Undertaking — Appeal from Judgment of Impris- onment. [Title of Court and Cause.] Know aix Men by these Presents : That we, 7. D., as prin- cipal, and R. R., and B. S., as svireties, are held and firmly bound imto the people of the state of California, in the sum of five hun- dred dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Signed with our hands and sealed with our seals, this fifth day of August, iQod. The condition of the above undertaking is such, that whereas the said /. D. was, on the second day of August, ipo6, before A. J. C, Esq., a justice of the peace in and for Dam townships county of Siskiyou, duly convicted of the crime of petit larceny, and upon said conviction it was ordered and adjudged by the said justice that the said /. D. be imprisoned in the county jail, in and for the county of Siskiyou, for the term of four months. And whereas, the said /. D. is desirous of appealing from the 4 New Book of Forms. ant in the sum of ^700 damages for tlie taking and detention of said property by plaintiff. (All courts.) KOTE.— California, C. C. P., sees. 624-628. No. 1264. — Verdict — Replevin for Defendant. [Title of Court and Cause.] We, the jury, find for defendant, and we find the value of the property in controversy to be $200, and that defendant is entitled to a return thereof from plaintiff. We also find for defendant in the sum of $100 damages for the taking and detention of said property by plaintiff'. (All cou'-ts.) No. 1265. — Verdict — Replevin — Specific Portions of Property. [Title of Court and Cause.] W'e, the jury, find for [either party] and we find the value of all the property in controversy to be $200, and that [either party] is entitled to a return thereof from [either party]. We also find that the brindle cow described in the [complaint or answer] is worth $^0. We also find for [defendant or plaintiff] in the sum of $100 damages for the taking and detaining of said property by [either party]. (All courts.) No. 1266. — Verdict — Special Issues Submitted. [Title of Court and Cause.] 1. Was plaintiff on the Urst day of May, jgo6, the owner of and entitled to the possession of a hnndle cow named Moof 2. Did defendant on said day enter the premises of plaintiff, and drive said cow away, and take possession of her, without plaintiff's consent? 3. Did defendant have said cow in his possession at the date of the commencement of this action? 4. What is the value of said cow? 5. Has plaintiff sustained damages on account of the taking of said cow by defendant [if you find that plaintiff owned her and defendant took her away] ? 6. What damages has plaintiff sustained by reason of the taking of said cow by defendant [if you find that he took her J ? (All courts.) NOTE.— California, C. C. P., sees. 624-628. Justice's Court. 735 No. 1267. — Verdict — Special Issues. [Title of Court and Cause.] We, the jury in the above-entitled matter, do find this, onr verdict, as by the answers to the interrogatories below stated, signed by our foreman : First Issue. [Repeat the interrogator}'.] Answer — Yes. Second Issue. [Repeat the interrogatory.] Answer — Yes. Third Issue. [Repeat the interrogatory.] Answer — Yes. Fourth Issue. [Repeat the interrogatory.] Answer — $100. Fifth Issue. [Repeat the interrogatory, except the last clause.] Answer — Yes. Sixth Issue. [Repeat the interrogatory, except the last clause.] Answer — $§0. (All courts.) No. 1268. — Verdict — Replevin — Specific Portions of Property. [Title of Court and Cause.] We, the jury, find for [either party] and we find the value of oil the property in controversy to be $300, and that [either partv] is entitled to a return thereof from [either party]. We also find that the hrindle cow described in the [complaint or answer] is worth $50. We also find for [defendant or plaintiff] in the sum of ^700 damages for the taking and detaining of said property by [either party]. (All courts.) NOTE.— California, C. C. P., sees. 624-628. No. 1269. — Verdict — Special Issues. [Title of Court and Cause.] 1. Was plaintifiF on the first day of May, igoy, the owner of and entitled to the possession of a brindle cow named Moo? 2. Did defendant on said day enter the premises of plaintiflF, and drive said coiv away, and take possession of her, without plaintiff's consent? 3. Did defendant have said cozv in his possession at the date of the commencement of this action? 4. What was the value of said cowf 736 New Book oi^ Forms. 5. Has plaintiff sustained damaj^es on accotmt of the taking of said cozv by defendant [if you find that plaintiff owned her and defendant took her away] ? 6. What damages has plaintiff sustained by reason of the tak- ing of said cow by defendant [if you find that he took her] ? (All courts.) NOTE,— California, C C. P., sees. 624-628. No. 1270. — Verdict — Special Issues. [Title of Court and Cause.] We, the jury in the above-entitled matter, do find this, our verdict, as by the answers to the interrogatories below stated, signed by our foreman : first Issue. [Repeat the interrogatory.] Answer — Yes. Second Issue. [Repeat the interrogatory.] Answer — Yes. Third Issue. [Repeat the interrogatory.] Answer — Yes. Fourth Issue. [Repeat the interrogatory.] Answer — $100. Fifth Issue. [Repeat the interrogatory, except the last clause.] Answer — Yes. Sixth Issue. [Repeat the interrogatory, except the last clause.] Answer — $jo. (All courts.) NOTE.— California, C. C. P., sees. 624-628. No. 1 27 1, — Warrant — ^Arrest. [Title of Court and Cause.] The people of the State of California, to any Sheriff, Constable, Marshal or Policeman in the County of Napa: A complaint (or information) upon oath, having been this day laid before me, by E. D., that the crime of burglary has been committed, and accusing /. S. thereof, you are therefore com- manded forthwith to arrest the above-named /. S., and bring him before me forthwitli, at my office in said township, in said county of Napa [or, in case of any absence or inability to act, before tlie nearest or most accessible magistrate in tins county], to be dealt with according to law. (All courts.) NOTE.— California, Pen. C, sec. 1427. JusTic£;'s Court. -^tj No. 1272. — Warrant — Indorsement of Service. [Title of Court and Cause.] I hereby certify, that I received the within warrant on the Hf- tcenth day of June, ipo6, and served the said warrant by arrest- ing the within named defendant, /. S., and bringing him into court, this fifteenth day of June, ipo^. The within named /. S., having been brought before me under this warrant, is committed for examination to the Sheriff of the county of Napa. (All courts.) NOTE. — When complaint is made before a justice or police judge of the commission of an offense triable in snch courts, a warrant must be issued for the arrest of the person charged: Cal. Pen. C, sec 1427. No. 1273. — Warrant — Search, [Title of Court and Cause.] State of California, County of Contra Costa, — ss. The People of the State of California, to any Sheriff, Constable, Marshal, or Policeman in the County of Contra Costa. Proof, by affidavit, having been this day made before me by /. B., that at the house of H. A. W., at So. ^^7 California street, in the town of Martinez, in said county, in room No. ys, in a tin box, in an old Imir trunk under a bedstead, there is a gold hunt- ing-case watch, No. 172,351, D. & Co., makers, Dogtoii'n, Sierra Co., Cal., zvhich watch was stolen from the person of affiant by A. D., on or about April i, iQoy, and there is probable ground for believing that said affidavit is tnie. [// under the statute the search may be nuide in cither the day or night. So stcUe in tlie zvarrant.] You are therefore commanded to make immediate search, in the daytime of the house of H. A. W., No. 557 California street, in the town of Martinez, in the said county, for the following described property [description as above,] and if you find the same, or any part thereof, to bring it forthwith before me, at my courtroom, in Brayton township, in said Contra Costa county. (All courts.) NOTE. — A search-warrant is onlv issued npon affidavit, naming or de- scribing the person, and particularly describing the property and place to be searched: Cal. Pen. C, sec. 1529. New Forms — 47 ^38 ' Nkw Book o? Forms. No. 1274. — Writ — Attachment. [Title of Court and Cause.] The people of the State of California, to the Sheriff or any Con- stable of the County of Sacramento, Greeting: You are hereby commanded to attach and safely keep all the property of the above-named defendant in this county, not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, to wit, twenty-eight dollars and fifty cents, gold coin of the United States, besides the costs, unless the said defendant shall give you security by the undertaking of two suffi- cient sureties, in an amount sufficient to satisfy said demand, be- sides costs, in which case you will take such undertaking. Make due return thereof. (All courts.) NOTE. — The Tvrit is directed to the sheriff or any constable of the county, or the sheriff of any other county, and must require him to at- tach and safely keep all the property of the defendant within his county not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of which must be stated in conformity with tbe complaint, unless the defendant give him security, by the undertaking of two sufficient sureties, in an amount sufficient to satisfy such demand, besides costs; in which case, to take such under- taking: Cal. C. C. P., sec. 868. JUSTIFICATION OF SURETIES. No. 1275. — Sureties, Justification of — Civil Cases. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. S. D. and F. R., the sureties whose names are subscribed to the above unrlertaking, being severally duly sworn, each for himself, says that he is one of the sureties named in the above undertaking ; that he is a resident and hotiseholder in said city [or state] and county, and is worth the sum in the said undertaking specified as the penalty thereof, over and above all his just debts and lia- bilities, exclusive of property exempt from execution. [All courts.] NOTE. — In California, in all cases where an undertal-ing, with sureties, is required by the provisions of the Code of Civil Procedure, the offi-cer LiCTTERS Testamentary and Administration. 739 taking the same must require the sureties to accompany it with an aflfi- davit that they are each residents and householders, or freeholdrrs, with- in the state, and are each worth the sum specified in the undertaking, over and above all their just debts and liabilities, exclusive of property exempt from execution; but when the amount specified in the undertak- ing exceeds three thousand dollars, and there are more than two sure- ties thereon, they may state in their affidavits that they are severally worth amounts less than that expressed in the undertaking, if the whole amount be equivalent to that of two sufficient sureties: Cal. C. C. P., sec. 1057. No. 1276. — Justification — Sureties of Criminal Cases. State of California, City and County of San Francisco, — ss. S. D. and F. R., persons whose names are subscribed as the sureties to the above undertatcing, being severally sworn, each for himself, says, that he is one of the sureties named in the above undertaking; that he is a resident and a householder within the county of Fresno, and state of California, and that he is wortli the amount specified in the said undertaking as the penalty thereof, over and above all his just debts and liabilities, exclusive of prop- erty exempt from execution. (AH courts.) NOTE. — The qualifications of bail are as follows: 1. Each of them must be a resident householder, or freeholder within the state; but the court or magistrate ray refuse to accept any person as bail who is not resident of the county where bail is offered: 2. They must be each worth the amount specified in the undertaking, exclusive of property exempt from execution; but the court or magistrate, on taking bail, may allow more than two sureties to justify severally in amounts less than that ex- pressed in the undertaking, if the justification be equivalent to that of suflSciert bail. The bail must in all cases justify by affidavit taken be- fore the magistrate, that they each possess the qualifications provided as aforesaid. The magistrate may further examine the bail upon oath concerning their sufficiencv, in such manner as he may deem proper: CaL Pen. Code, sees. 1279,' 1280. LETTERS TESTAMENTARY AND ADMINIS- TRATION. No, 1277. — Letters Testamentary. [Title of Court and Estate.] The last will of P. C, deceased, a copy of which is hereto an- nexed, having been proved and recorded in the superior court of the county of Sacramento, T. M., who is named therein, is hereby appointed executor, with C. D. 740 New Book of Forms. Witness, T. H. B., clerk of the superior court of the county of Sacramento, with the seal of the court affixed, the fourtJi «iay of May, igo6. State of California, City and County of Sacramento, — ss.^ I do solemnly swear that I will perform, according to law, the duties of executor of the last will and testament of P. C, deceased. NOTE. — In (Jaliforuia the above form down to and including the words "By order of the court, G. H., Clerk," is a copy of section 1360, Code of Civil Ptoeedure. The words in script are not in the section, be- in£r blanks. The section commences by words "Letters testamentary miist he substantially iu the following form." The word "substanti- Uiiy" aucuoiiZi-ci any form similar in meaning. All the states and terri- tories have statutory forms substantially like those used in California. No. 1278 — Letters — Administration — Will Annexed — Execu- tor Dying After Qualifying. [Title of Court and Estate.] State of California, City and County of San Francisco, — ss. The last will of F. R., having been admitted to probate in the above-entitled court, and /. C. R., having been appointed and quaiiiied as executor of said will, and the said executor having died, before said estate is closed, C. R. is hereby appointed ad- ministrator, with the will annexed, of the estate of said F. R., deceased. NOTE. — On the death of the sole surviving executor of a last will, letters of administration, with the will annexed, of the estate of the testator Irft unadministered must be issued: C. C. P., sec. 1353. If a will names two or more executors to serve upon the inability, declination or d(»ath of the first executor, they will be appointed in the order provided in the will: Id., sec. 1350. It appears that in case of the death of the sole executor the executor with the will annexed must be entitled to succeed to or share in the distribution of the decedent's estate. Therefore, none of the persons entitled to letters of administration in case of intestacy seem to be en- titled to letters of administration with the will annexed unless entitled to succeed to his personal estate or some portion thereof: Id., see. 1365. The word "succeed," if construed to refer to the word "succession" as used in section 1383 of the Civil Code, then being entitled to succeed in case of intestacy, and being disinherited under the will, would not in the ojiinion of some good lawyers, bar a person from obtaining letters of administration with, the will annexed in preference to beneficiaries, not entitled to letters of administration upon the estate of intestate decedents. In the body of section 1365, Code of Civil Procedure, the word "suc- ceed" is used as above mentioned; but in subdivision 7, "The next of kin entitled to share in the distribution of the estate" are entitled to letters. Letteks Testamentary and Administration. 741 No. 1279. — Letters — Administration — Will Annexed — Will not Appointing Executor. [Title of Court and Estate.] State of California, County of Sacramento, — ss. The last will of A. M., deceased, a copy of which is hereto an- nexed, having been proved and recorded in the superior court of the city a)td county of Sacrajiicnto, and there being no executor named in the will, residing in this state, IV. P. is hereby appointed administrator with the will annexed. Witness : T. H. B., clerk of the superior court, county of Sac- ramento, with the seal of the court affixed, tlie seventeenth day of April, igo6. By order of the court, NOTE. — There being no executor named in a will, the court will ap- point an executor with the will annexed. In snch case the person en- titled to administer in case of intestacy is entitled to such letters: CaL C. C. P., sees. 1350, 13.53. As to form of letters, see Id., sec. 1361. No. 1280. — Letters — Administration of — GeneraL [Title of Court and Estate.] State of Calif amis, City and County of San Francisco, — ss. M. J. is hereby appointed administratn.r of the estate of T. J., deceased. Witness: W. A. S., clerk of the superior court of the city and county of San Francisco, with the seal thereof affixed, this six- teenth day of June, igo6. By order of the court. Clerk. State of California, City and County of San Francisco, — ss. L M. J., do solemnly swear that I will faithfully perform, ac- cording to law, the duties of adrainistratrur of the estate of T. J., deceased. M. J. NOTE.— California, C. C, sec. 1362. 742 New Book of Forms. No. 1 28 1. — Letters — Administration — Special. [Title of Court and Estate.] /. W. is hereby appointed special administrator of the estate of H. V/., deceased. Witness: W. A. S., clerk of the superior court in and for the city and county of San Francisco, with the seal of tlie said court affixed, this 7ii7ith day of May, jpo6. By order of the court. NOTE. — In California, when there is delay in granting letters, or when Bueh letters are granted irregularly, or no bond is filed as required, or when no application is made for letters, or when an executor or admin- istrator dies, or is suspended or removed, the superior court, or a judge, must appoint a special administrator to collect and take charge of the estate of the decedent in whatever county the same may be and to exer- cise other powers necessary for the preservation of the estate [or he may direct the public administrator of his county to take charge of the estate]: Cal. C. C. P., sees. 1411-14:17. LOST PROPERTY. No. 1282. — Lost Property — Affidavit — Finder. State of California, City and County of San Francisco, — ss. C. W. C, being duly sworn, deposes and says, that he is a citizen of the United States, above twenty-one years of age, and a resident of No. g2j Howard street, in the city and county of San Francisco, state of California; that on the fifth day of July, 1905, in the hay of San Francisco, in an open boat, apparently aban- doned, there being no person in the same, and ivhich boat was be- ing driven by the wind and tide tozvards the bar, off Fort Point, at the rate of about eight miles an hour, the following described property, viz. : One lot of fisliing tackle, consisting of lines, rods, nets, baskets, hooks, etc.; one demijohn of Tanglefoot's A i zv/tisky; one large basket of lunch; two pairs of rubber boots; one box of cigars; one package of smoking tobacco ; two pipes; two rolls of blankets; one small tent; one coffee-pot; two tin plates; two table knives and forks, and a small lot of groceries. That he saved the said property by taking the said boat to Washington street wharf, and by storing t/ie said goods in C. & K.'s warehouse, No. ^282 Webb street, in said city; that he does Lost Property — Mandamus. 743 not knozv zuJio the ozvner of said property Ls; that the value thereof is over one hundred dollars, and that he has not recently withheld, or disposed of, any part of said property. NOTE. — California, Pol. C, sec. 3136; Alaska, Codes, pt. 5, c. 30, sees. 296-309; Idaho, Pen. C, sec. 4954; Montana, Pol. C, sec. 2900. MANDAMUS. No. 1283. — Mandamus — Alternative. [Title of Court and Cause.] The People of the State of Calif ornicntecnth day of July, 190^, which said decree was, on the tenth day of August, jpo6, recorded in Judgment Book H of said court, at page 16^, I am commanded to sell — All that certain lot, piece, or parcel of land situate in the city and county of San Francisco, state of California, and bounded and described as follows, to wit: [Description.] Notice is hereby given that on Friday, the eighteenth day of February, ipoj, at twelve o'clock noon, of that day, in front of the City Hall, in the city and county of San Francisco, I will, in obedience to said order of sale and decree of foreclosure, sell the above-described property, or so much thereof as may be necessary to satisfy plaintiff's judgment, with interest thereon and costs to the highest and best bidder for cash, in gold coin of the United States. NOTE.— California, C. C. P., sec. 6R2; Alaska, Codes, pt. 4, c. 31, sec. 278; Arizona, C. C, par. 2570; Idaho, C. C. P., sec. 3544; Montana, C. C. P., sees. 1225, 1226; Nevada. Conip. Laws, sec. 3318; New Mexico, Comp. Laws, sees. 3105-3135; North Dakota, C. C, sees. 5531-5535; Oregon, Codes and Statutes, sees. 233-237; South Dakota. C. C. P., sees. 366-373; Utah Rev. Stats., sec. 3249; Washington, Ballinger's Codes, BBC. 5273; "Wyoming, Kev. Stats., sec. 3879. No. 131 2. — Notice — Foreclosure of Lien — Sheriff's Sale, [Title of Court and Cause.] SHERIFF'S SALE. Under and by virtue of an order of sale and decree upon fore- closure of a lien issued out of the superior court of the city and county of San Francisco, state of California, on the tzvcnty-cighth day of December, ipoj, in the above-entitled action, wherein /. B., the above-named plaintiff obtained a judgment and decree ag-ainst Southern Pacific Railroad Company, a corporation, et al, de- fendants, on the twenty-third day of December, 1905, which said decree was, on the twenty-eighth day of December, 1905, recorded in Judgment Book JJ, of said court, at page 223, I am commanded to sell — All that certain lot, piece, or parcel of land situate, lying, and being in the city and county of San Francisco, state of California, bounded and described as follows, to wit: [Description.] Notice is hereby given that on Friday, the nineteenth dav of February, ipo^, at turlve o'clock, noon, of that day, in front of ^■58 New Book of Forms. the City Hall, in the city and county of San Francisco, I will, in obedience to said order of sale and decree of Hen, sell the above- described property, or so much thereof as may be necessary to satisfy said plaintiff's judgment, with interest thereon and costs, etc., to the highest ana best bidder, for cash, in gold coin of the United States. NOTE.— California. C. C. P., sec. 6R2; Arizona. C. C, par. 2570; Idaho, C. C. P., sec. 3544; Montana, C. C. P., sees. 1225, 1226; Nevada, Comp. Laws, sec. 3318; New Mexico, Comp. Laws, sees. 3105-3135; North Dakota, C. C, sees. 5531-5535; Oregon, Codes and Statutes, sees. 233, 237; So\ith Dnkota, C. C. P.. sees. 3fi6, 373; Utah, Eev. Stats., sec. 3249; Wash- ington, Ballinger's Codes, sec. 5273; Wyoming, Bev. Stats., sec. 3879. No. 1313. — Notice — Personal Property, Sheriff's Sale of, [Title of Court and Cause.] SHERIFFS SALE. Bv virtue of an execution issued out of the superior court of the city and county of San Francisco, state of California, in the suit of W. A. D. against /. C. P., duly attested the eleventh day of April, iQod, I have levied on one sofa, six lounge chairs, one cen- ter-table, four sets of curtains, one sideboard, three carpets, one sofa, and three chairs. Notice is hereby given that on Thursday, the t^venty- fourth day of May, jgo6, at twelve o'clock M., at the dzvelling-house, sit- uated on the southeast corner of Green and Stockton streets, in the city and county of San Francisco, I v^\\\ sell the above-de- scribed property to the highest bidder, for cash. (All courts.) ;N'oTE. — California, C. C. P.. sec. 692; Alaska, Codes, pt. 4, c. 31, sec. 278; Arizona, C. C, par. 2-^70; Idaho, C. C. P., sec. 3544; Montana, C. C. P., sees. 1225, 1226; Nevada, Comp. Laws, sec. 3318; New Mexico, Comp. Laws, sees. 3105-3135; North Dnkota. C. C, sees. 5531-5535; Ore- gon. Codes and Rtatntes. sees. 233-237; Sonth Dakota, C. C. P., sees. 366-373; Utah, Rev. Stats., sec. 3249; Washington, Ballinger's Codes, sec. 5273; Wyoming, Eev. Stats., sec. 3879. No. 1314. — Notice — Claim is Disputed. [Title of Court and Cause.] You are hereby notified, that the defendant [or plaintiff] herein disputes the validity of your claim for one hundred dollars, notice of which you have heretofore served me with ; and unless you commence action to test the validity of your claim, and prosecute the same with reasonable diligence, within ten days from the date NoTice. 759 hereof, it will be barred as a preferred claim, under the writ of attachment [or execution] herein. (AH courts.) NOTE.— California, C. C. P., sees. 1204-1207; Alaska, Codes, pt. 5, e. 29, sees. 2G2-295; Arizona, C. C, pars. 2928-29.34; Idaho, C. C. P., sees. 3335-3472; Montana, C. C. P., sees. 2150-2156; Nevada, Comp. Laws, sees. 3902-3904; New Mexico, Comp. Laws, sees. 2216-2248; North Dakota, C. C, sees. 4802-4844; Orepron, Codes and Statutes, sees. 5659-5667; South Dakota, C. C. P.. sees. 695-744; Utah, Rev. Stats., sees. 1344-1346; Washington, Ballinger's Codes, sees. 5957-5959; "Wyoming, Eev. Stats^ sees. 2843-2859. No. 13 15. — Notice — Claim Disputed by Defendant. [Title of Court and Cause.] You will please take notice, that I dispute the entire claim made by /. W., Esq., for one hundred dollars, for labor claimed to have been performed by him for me ay a miner; you are notified that I am not indebted to him to the value of anythin.^ on account of labor performed within sixty days next preceding the date of the levy by you of the writ of attachment herein. No part of said claim is justly due from me to said claimant (All courts.) ^ NOTE.— California, C. C. P., sees. 1204-1207. No. 1316. — Notice to Officer — Claim of Laborer. [Title of Court and Cause.] You will please take notice, that within sixty days next preced- ing the date of the levy by you of the writ of attachment against the property of said defendant in this action, / rendered labor as a miner for said defendant, and there is due from him for said labor the sum of $100; and you are hereby directed to withhold said amount from the proceeds of said property attached, and to pay the same to me on said labor account. (All courts.) NOTE.— California, C. C. P., sees. 1204-1207. No. 1317. — Notice to Creditor of Laborer's Claim. [Title of Court and Cause.] You will please take notice, that /. W. has presented a claim, under oath, for one hundred dollars, which he claims is due to him from the defendant herein for labor as a miner, within sixty days next preceding the levy of the attachment writ herein. (All courts.) NOTE.— California, C. C. P., sees. 1204-1207. 760 ' New Book of Forms. No. 1318. — Notice — Claim Disputed by Creditor. [Title of Court and Cause.] You will please take notice, that I dispute the entire claim made by /. IV., Esq., for one hundred dollars, for labor claimed to have been performed by him for the defendant as a miner, in this ac- tion, within sixty days next preceding the date of the levy by you of the writ of attachment herein. No part of said claim is justly due from the defendant to the claimant, (All courts.) NOTE.— California, C, C. P., sees. 1204-1207. No. 1319. — Notice — Disincorporate, Application to. [Title of Court and Cause.] Notice is hereby given that the M. G. Company, a corporation formed under the laws of the state of California, has presented to the superior court of the city and county of San Francisco, a petition praying to be allowed to disincorporate and dissolve ; and that Friday, the twelfth day of September, igo6, at 10 o'clock in the forenoon, or as soon thereafter as counsel can be heard, has been appointed as the time, and the courtroom of the superior court in and for the city and county of San Francisco, as the place, at which the said application is to be heard. NOTE.— California, C. C. P., sees. 1230-1232; Arizona, C. C, par. 772; Idaho, C. C. P., sec. 3837; Montana, C. C. P., sees. 2192, 2193; Nevada, Comp. Laws, sec. 887; New Mexico, Comp. Laws, sees. 434-452; North Dakota, C. C. P., sees. 5753-5794; Oregon, Codes and Statutes, sec. 5070; South Dakota, C. C, sees. 446-44S; Utah, Kev. Stats., ^ecs. 3661-3667; "Washington, Ballinger's Codes, sec. 4275; Wyoming, Rev. Stats., sees. 3258-3264. No. 1320. — Notice — Application — Discharge from Imprison- ment for. [Title of Court and Cause.] You will please take notice, that on Friday, the tenth day of August, A. D. igo6, at the hour of ten o'clock A. M., or as soon thereafter as the matter can be heard, I will apply to the Honor- able /. H., judge of the superior court of the city and county of San Francisco, at the courtroom of his said court in the Nezv City Hall, in said city and county, for an order to be discharged from imprisonment in the county jail of said city and county, where I Notice. 7G1 am confined as a prisoner under civil process, issued out of the justice's court of said city and county, in an action in said jus- tice's court entitled A. B. C. D. v. E. F. G. H. (All courts.) NOTE. — California, Pen. C, sec. 1382; Alaska, Codes, pt. 4, c. 12, sees, 99-122; Idaho, C. C. P., sees. 3962-3973; Montana, C. C. P., sees. 2060- 2066; Nevada, Comp. Laws, sees. 39U8-3917; North Dakota, C. C. P., Bees. 6136, 6147; Oregon, Codes and Statutes, sees. 219, 280, 281; South Dakota, C. C. P., sees. 790, 802; Utah, Eev. Stats., sees. 3036-3014; Washington, Ballinger'a Codes, sees. 5463-5492; Wyoming, Bev. Stats., 86CS. 3983, 3987. No. 132 1. — Notice — Sole Trader, Intention to Become. [Title of Court and Cause.] Notice is hereby given that I, A. J., wife of T. /., resident of the city and county of San Francisco, being desirous of availing myself of the provisions of Title XII, Part III of the Code of Civil Procedure, intend to make application to the superior court of the city and county of San Francisco, state of California, on Monday, the third day of November, jpo6, at the opening of the court on that day, or on such other day to which the hearing may be postponed by the court, for a judgment and order of said su- perior court, authorizing me to carry on and transact business in my own name and on my own account as sole trader. The nature of the business I propose to carry on and conduct is that of buy- ing and selling goods, wares, and merchandise, and keeping a general variety store in said city and county of San Francisco. NOTE.— California, C. C. P., sec. 1812; Idaho, C. C. P., sec. 3884; Montana, C. C. P., sec. 2291; Nevada, Comp. Laws, sees. 545-549. No. 1322. — Notice — Deposition, Taking of. [Title of Court and Cause.] You will please take notice that the depositions of IV. G. and J. M., witnesses on behalf of the plaintiffs in the above-entitled action, to be used upon the trial thereof, will be taken before L. W., Esq., a notary public in and for the county of Placer, in the state of California, at his ofiftce in the city of Auburn, in the county of Placer, on the fourteenth day of June, 1904, between the hours of p A. M. and 4 P. M. of that day ; commencing at p o'clock A. M., and if not completed on that day, the taking thereof will be continued from day to day, successively thereafter, and over Sundays, at the same place, until completed. 762 New Book or' Forms. And you will further take notice, that the annexed is a copy of an affidavit of /. D., one of said plaintiffs, showing that the case is one in which depositions may be taken. (All courts.) NOTE.— California, C. C. P., sees. 2004-2031; Alaska, Codes, pt. 4, e. 60, sees. 637-658; Arizona, C. C, par. 2507; Idaho, C. C. P., sees. 4497-4527; Montana, C. C. P., sees. 3340-3367; Nevada, Comp. Laws, sees. 3502-3510; New Mexico, Comp. Laws, sees. 3036-3048; North Dakota, C. C. P., sees. 5673 5688; Oregon, Codes and Statutes, sees. 835-841; South Dakota, C. C. P., sees. 511-523; Utah, Rev. Stats., sees. 3449-3465,- WashinjETton, Ballinger's Codes, sees. 6017-6030; Wyoming, Bev. Stats.- 3711-3717. No. 1323. — Notice — Deposition, Taking oL [Title of Court and Cause.] You and each of you will please take notice, and you are hereby notified that the deposition of C. A. the plaintiff in the above- entitled action, and a witness on behalf of the defendants, F. A. and H. N. will be taken on behalf of the said last-named defend- ants, before H. S., Esq., a notary public in and for the county of Alameda, state of California, at the office of the said H. S., Esq., Room 6, No. po6 Broadzvay, in the city of Oakland, county of Alameda, state of California, on Saturday, the 4th day of March, A. D, 1905, at the hour of ten o'clock A. M. of that day, and if not completed on the said day, the taking thereof will be con- tinued from day to aay successively thereafter, and over holidays, at the same place, until completed. And you are further notified that annexed hereto is the affidavit of F. A., one of the said last-named defendants, showing that the case is within section 2021 of the Code of Civil Procedure of the State of California. (All courts.) NOTE.— California, C. C. P., sees. 2021, 2031; Alaska, Codes, pt. 4, c. 60, sees. 637-658; Arizona, C. C, par. 2507; Idaho, C. C. P., sees. 4497- 4527; Montana, C. C. P., sees. 3340-3367; NNevada, Comp. Laws, sees. 3502-3510; New Mexieo, Comp. Laws, sees. 3036-3048; North Dakota, C. C. P., sees. 5673-5686; Oregon, Codes and Statutes, sees, 839-841; South Dakota, C. C. P., sees. 511-523; Utah, Rev. Stats., sees. 3449-3465; Washington, Ballinger's Codes, sees. 6017-6030; Wyoming, Eev. Stats., sees. 3711-3717. No. 1324. — Notice — Witness Out of the State — Motion for Commission to Examine. [Title of Court and Cause.] The defendant and his attorney will please take notice that upon the affidavit of plaintiff served with this notice, and upon. Notice. 763 the complaint and papers filed in the above-entitled action, the ])laintifF will apply to the Honorable O. P. A., presiding judge of this court, at the courtroom thereof, in the city and county of San Francisco, on the tzventy-sixth day of January, IQ06, at the hour of ten o'clock A. M., or as soon thereafter as counccl can be heard, for an order directing a commission to issue out of, and under the seal of this court to take the testimony of \V. C. a witness residing out of this state, directed to some proper person residing at the city of New York, in the state of New York, then and there to be selected and appointed by the judge of this court. (All courts.) NOTE.— California, C. C. P., sec. 2024; Alaska, Codes, pt. 4, c. 60, socs. 637, 658; Arizona, C. C, pt. 2507, Idaho, C. C. P., sees. 4497-4527; Mon- tana, C. C. P., sees. 3344-3367; Nevada, Corap. Laws, sees. 3502-3510; New Mexico, Comp. Laws, sees. 3036-3048; North Dakota, C. C. P., sees. 5673- 5686; Oregon, Codes and Statutes, sees. 839-841; South Dakota, C. C. P., Bees. 511-523; Utah, Rev. Stats., sees. 3449-3465; Washington, BaUinger'a Codes, sees. 6017-G030; Wyoming, Bev. Stats., sees. 3711-3717. No. 1325. — Notice — Deposition to Take. [Title of Court and Cause.] Please take notice that the deposition and testimony of the wit- ness in the foregoing afHdavit mentioned will be taken on the fourteenth day of May, ipo6, and before L. IV., Esq., a notary public, at his office. No. yos River street, in the town of Auburn, state of California; and that the deposition and testimony so taken will be used as evidence on the trial of tlie above-entitled action. (All courts.) NOTE,— California, C. C. P., sec. 2031. No. 1326. — Notice — Arrest, Plaintiff, of. [Title of Court and Cause.] You will please take notice, that I have, in obedience to the order indorsed on the summons in this action, arrested the de- fendant, and he is now in my custody. Indorsed: Service of the within notice admitted this third day of July, igo6. NOTE. — In some states, as was formerly the law in California, an order of arrest might be indorsed on the summons, and, in such case, tho officer was required to immediately notify the plaintiff or his attorney of tli« arrest. The officer's duty then is now the practice. 764 New Book of Forms. No. 1327. — Notice — Surety to His Guarantors to Defend Ac- tion on a Bond Signed by Surety and Guarantor. [Title of Court and Cause.] You will please take notice that on or about the 2^th day of September, i8pp, you signed and delivered to A. S. Company a certain check in the sum of $3,000 to be held and which is held by it to indemnify and save harmless said A. S. Company, from and against all loss, damages, costs, charges, counsel fees and expenses whatsoever, which said S. Company shall or may for any cause, at any time, sustain or incur, by reason or in conse- quence of said 6". Company having become surety for R. A. on a certain bond for the sum of one hundred thousand dollars ($100,000), which bond is conditioned that said A. A., his neu's, /xecutors, administrators and assigns, shall well and truly and in 4. satisfactory manner fulfill and perform the stipulations, cove- nants and agreements of a certain contract entered into by said R. A. with the United States of America represented by Major W. H. H., Corps of Engineers, U. S. Army, for removing certain rocks in San Francisco Bay, California, and shall promptly make pay.nents to all persons supplying him labor or materials in the proSs«:ution of the work provided for in the said contract. And you are hereby notified that on or about the ist day of Octob^, igo4, the United States of America, in the relation of and fo.* the use and benefit of IV. W. M. and Company, com- menced ^n action in the Circuit Court of the United States, Ninth Circuit, Northern District of California, against the said R. A. and the dndersigned, the said A. S. Company upon said above- mentioned bond. A copy of the summons and complaint in said action is herewith handed you. The summons and complaint were serveJ upon the undersigned, A. S. Company, on the 3th day of October, IQ04. And you ,ire hereby further notified to take such action in de- fending said suit, or appearing therein, as you may be advised to be necessary in the premises. The undersigned will be pleased to have either you or your attorneys consult with Mr. C. A., 1200 S. St., San Francisco, California, coUvterning said suit. No. IS--*??. — Notice — Executor, Suspension of. [Title of Court and Cause.] To A. B., Exectftor of the Will of B. F., Deceased : You are hereby notified that on the jcf day of June, igo6, it appearing to tho judge of this court from credible information Notice. 765 that you, as said executor, have mismanaged the property of said estate, he has, for that reason, so made an order suspending you from your powers as executor until the matter is investigated, and such order has been entered upon the minutes of said court. NOTE.— California, C. C. P., sees. 1437-1439; Arizona, C. C, pars. 1706-1708; Idaho, C. C. P., sees. 4100-4102; Montana, C. C. P., sees. 2o41- 2543; Nevada, Comp. Laws, sees. 3028-3030; North Dakota, Probate Code, Bccs. 6362-6371; South Dakota, Probate Code, sees. 133-137, 343; Wash- ington, Ballinger's Codes, sees. 6168-6170; Wyoming, Kev. btats., sees. 4623-4625. No. 1329. — Notice — Postponement of Sale. [Title of Court and Cause.] Notice is hereby given that the sale above referred to was this day by me postponed until Saturday, June 2, 190 j, when it will take place as above stated. (All courts.) [In this form the notice is attached to the original notice of , sale.] NOTK— California, a C. P., sec. 694. See Nos. 1306-1309. No. 1330. — Notice — Time and Place Where Assessment Will be Made — Inheritance Tax. [Title of Court and Estate.] Please take notice, that by authority of an order made in the matter of said estate, the undersigned was appointed appraiser to appraise property described in the inventory and appraisement in the above-named estate, subject to the payment of the tax im- posed by the laws of the state of California to establish a tax on gifts, legacies, inheritances, bequests, devises, successions and transfers. In obedience to said order, I will, on the loth day of August, A. D. ipoj, at 10 o'clock A. M. of said day, at Room No. 10, 1728 yth street, Oakland, in the county of Alameda, proceed to appraise all of the property in said estate subject to said tax. NOTE.— Act of March 20, 1905, p. 341, sec. 14. No. 1 33 1. — Notice — Treasurer — District Attorney — Inher- itance Tax. [Title of Court and Cause.] To A. B. C, Esq, district Attorney of the county of Butte, Cali- fornia : Please take notice that in the above-entitled matter, I have rea- son to believe that B. F. G., who is interested in tlie property liable 766 New Book of Forms. to an inheritance tax, which is a lien upon all the real estate be- longing to said estate, has neglected to pay said tajc, and said tax remains unpaid. This notice is given under provisions of the act of March 20, jpo^, Stats., page 341, sees. 18 and 26. NOTE.— Act of March 20, 1905, Stats., p. 341, sec. 18. No. 1332. — Notice — Trust Company to County Treasurer — In- heritance Tax. [Title of Court and Estate.] To A. B., Treasurer of the City and County of San Francisco, State of California: Please take notice, that the undersigned, the A. B. C. D. Trust and Widow and Orphan's Estates Guarding Company, a corpora- tion, have on deposit the following books, stocks, and securities, deposits belonging to the estate of the said O. F., deceased, of the total value of $30,000, which we hold in confidential and secret trust under instructions to deliver to his widow ten days after his death. We are informed by our attorney that it is our duty to notify you that we propose to deliver said property to said widovv^ at our office on June 3, 1905, at p o'clock A. M. NOTE.— Act of March 20, 1905, Stats., p. 341, see. 13. OEDERS. No. 1333. — Order — Appraiser, Appointing — Inheritance Tax. [Title of Court and Estate.] A. B. C, having filed herein a petition praying for the appoint- ment of an appraiser under and pursuant to the laws of the state of California to establish a tax on gifts, legacies, inheritances, bequests, devises, successions and transfer and sufficient cause appearing therefor — It is ordered, that /. S., Esq., be and he is hereby appointed such appraiser. .. is further on'ered, that he, as appraiser, give ten days' no- tice by mail to all persons known to have or claim an interest in the property belonging to said estate subject to the above-men- tioned tax, of the time and place at which he will appraise the property as described in said petition. Orders. 767 It is further ordered, that the said appraiser ^z'e notice of his appointment and of the time and place at tvhich he zi'iU ap- praise said property to J. C. R., the executor of the will of said deceased; also to H. G., zvho claims to ozvn said property by virtue of an unrecorded conveyance from said deceased. NOTE.— Act of March 25, 1905, Stats., p. 341, sec. 14. No. 1334. — Order — Arrest — Insane Person. [Title of Court and Cause.] State of California, City and County of San Francisco, — S3. The People of the State of California, to the Sheriflf or any Con- stable or Policeman, of said City and County. A complaint, under oath, having this day been made before me, setting forth that a person by the name of R. R., by reason of insanity, is dangerous to be at large, you are therefore com- manded, forthwith, to arrest the above-named R. R., and bring him before me, at the courtroom of the said superior court, at the City Hall, in said city and county of San Francisco, on Monday, the twenty-ninth day of March, ipo6, at ten o'clock A. M. of said day. NOTE.— California, Pol. C, sec. 2139; Arizona, C. C, pars. 2768-2773; Idaho, Pol. C, sec. 406; Montana, Pol. C, sees. 2300-2311; Nevada, Comp. Laws, sees. 4423-4427, 4536-4545; New Mexico, Comp. Laws, sees. 1923-1925; North Dakota, C. C, sec. 1518; Oregon, Codes and Statutes, sec. 3620; South Dakota, Pen. C, sec. 19; Utah, Rev. Stats., sees. 2171- 2181; Washington, Ballinger's Codes, sees. 2660-2663; Wyoming, Rev. Stats,, sees. 3476, 48S0; Colorado, Mill's Stats., sec. 2962. No. 1335. — Order — Arrest by Sureties. [Title of Court and Cause.] You will please take notice, that the undersigned, the sureties on the bail of defendant on his release from arrest, as appears from the undertaking, of which the within is a certified copy, command you to forthwith arrest the within named defendant and detain him in your custody until he is discharged by law. (Dated and signed by the sureties.) (All courts.) NOTE.— California, C. C. P., sees. 488, 489; Alaska Codes, pt. 4, c. 12, sec. 103; Idaho, C. C. P., sec. 3254; Montana, C. C. P., sec. 810; Nevada, Comp. Laws, sees. 3169-3172; North Dakota, C. C. P., sec. 5313; Oregon, Codes and Statutes, sec. 264; South Dakota, C. C. P., sec. 166; Utah, Erv. Stats., sees. 3019, 3020; Washington, Ballinger's Codes, sees. 5474, 547o; Wyoming, Rev, Stats., sees. 3979, 3980. 768 New Book of Forms, No. 1336. — Order — Arrest — Civil Cases. [Title of Court and Cause.] The People of the State of California, to the Sheriff of the City and County of San Francisco: The above-named plaintiff having commenced an action in the superior court of the city and county of San Francisco, state of California, against the above-named defendant, and it duly ap- pearing to me, from affidavit submitted on the part of the said plaintiff, that a sufficient cause of action exists, and that the case is one wherein the defendant's arrest should be ordered ; and the necessary undertaking having been given, I, the undersigned, judge of the said superior court, by virtue of the authority in me vested by law, do order and require you, the said sheriff of the city and county of San Francisco, forthwith to arrest the said de- fendant, if he may be found in your county, and hold him to bail in said action in the sum of $2,1^0, and that you return this or- der, with your proceedings thereon, to the clerk of the said su- perior court on the twentieth day of June, igo6. NOTE. — In California the defendant may be arrested: 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 mis- applied, or converted, to his own use, by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such or by any other person in a fiduciary capacity; or for misconduct or neglect in office, or in a professional employment, or for a willful violation of duty; 3. In an action to recover the possession of personal property unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of, to prevent its being found or taken by the sheriff; 4. When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought; or in concealing or disposing of the property for the taking, detention, or conversion of which the action is brought; 5. When the defendant has removed or disposed of his property, or is about to do BO, with intent to defraud his creditors. An order for the arrest of the defendant must be obtained from the judge of the court in which the action is brought. Tbe order may be maje whenever it appears to the judge, by affidavit, that a sufficient cause of action exists, and that the case is one of those mentioned above. The affidavit must be either positive, or upon information and belief; and when upon information and belief, it must state the facts upon which the information and belief are founded: Cal. C. C. P., sees. 479-481. See Affidavits; Alaska, Codes, pt. 4, c. 12, sec. 100; Idaho, C. C. P., sec. 3246; Montana, C. C. P., BBC. 802; Nevada, Corap. Laws, sees. 3169-3172; North Dakota, C. C. P., sec. 5308; South Dakota, C. C. P., sees. 160, 161; Utah, Rev. Stats., sees, 3011, 3012; Washington, Ballinger's Codes, sees. 5464-5467; Wyoming, Eev. Stats., sees, 3958-3987. Orders. 769 No. 1337. — Order — Assistance, Writ of. [Title of Court and Cause.] On reading and filing the affidavit of /. W., setting forth that he was the purchaser of the premises described in the couiphunt herein; that he has presented to the defendant, R. R., the sheriff's deed for said property, and demanded possession thereof, and that said defendant has refused to deliver to him possession of said premises; and it appearing that due notice has been given of this motion of S. & B., the attorneys of said defendant : Now, on motion of S. & S., attorneys of said /. W., it is ordered that a writ of assistance issue to the sheritt of San Mateo county, to put the said /. IV., in possession of the said premises, and him in the possession thereof, from time to time, to maintain and defend. NOTE. — California, C. C. P., sees. 1210-1254; Arizona, C. C, par. 3281; Idaho, C. C. P., sec. 3 168; Montana, C. C. P., sec. 582; Now Mexico, Comp. Laws, sec. 3352; Utah, Rev. Stats., sec. 2915; Wyoming, liev. fcJtats., sec. 4119; Colorado, MiU's btats., sec. 1994. No. 1338. — Order Directing a Surviving Partner to Render an Account. [Title of Court and Estate.] Upon the application of /. C, the executor of the will of S. D., deceased, it is ordered that H. M. and C. B., surviving partners of S. D., deceased, render an account of the partnership exist- ing at the time of the death of said deceased, and said H. M. and C. B. in farming K. R. ranch in M. County, California. Said ac- count to be rendered and served upon said executor on or before June J, ipo6. NOTE. — Such order may be made by the court whenever it appears to be necessary; and, in case of neglect to do so, it may, after notice, compel obedience by attachment — that is to say, by contempt proceed- ings based upon order to account: Cal. C. C. P., sec. 1585; Arizona, C. C, par. 1829; Idaho, C. C. P., sec. 4216; Montana, C. C. P., sec. 2734; Nevada, Comp. Laws, sec. 2954; North Dakota, Probate Code, sec. 6377; Oregon, Codis and Statutes, sees. 1130, 1132; South Dakota, Probate Code, sec. 246; Utah, Eev. Stats., sec. 3918; Washington, Ballinger's Codes, sees. 6190-6192. No. 1339. — Order Directing Further Notice upon Settlement of Account. [Title of Court and Estate.] It appearing to the court that the notice given upon the final account of the administrator was insufficient, it is ordered tliat New Forma — 49 // o Nkw Book of Forms. further notice be given by posting the notice of settlement in three of the most pubHc places in the said city and county for thirty days commencing June 5, 1906, and by publishing an ab- breviation of said notice as follows: "Notice. — The hearing of the final account of the administrator of the estate of A. B., deceased, will be heard on July 10, ipo6, superior court, department p, 10 o'clock A. M." And it is further ordered that said abbreviated notice be pub- lished on the 5//1 of June, igo6, in the C, on the loth in the B., on the ijth in the B., on the iSth in the R., and on the jo//i in all said papers. NOTE. — If a court or judge deems the notice of final settlement in- sufficient, he may order such further notice as may to him seem proper: Cal. C. C. P., sec. 1633; Arizona, C. C, par. 1867; Idaho, C. C. P., sec. 4253; Montana, C. C. P., sec. 2791; Nevada, Comp. Laws, see. 2973 j Oregon, Codes and Statutes, sec. 1202; South Dakota, Probate Code, see. 283; Utah, Rev. Stats., sec. 3942; Washington, Ballinger'a Codes, sec. 6327; Wyoming, Eev. Stats., sec. 4722. No. 1340. — Order — Account — Referee Appointed to Settle [Title of Court and Estate.] M. J., the administratrix of the estate of T. J., deceased, hav- ing on the sixteenth day of June, ipo6, rendered her annual ac- count of settlement, and notice of such settlement having been duly given for this day, as ordered by this court [if the guardian ad litem, or any person interested in the estate, has tiled excep- tions to the account, state that fact here, thus: And J. F. P., Bsq., appointed by this court to represent W. J., C. J., and B. J., minors interested in the said estate, upon the settlement of said account — or, the party opposing — having appeared and hied ex- ceptions thereto^ : It is hereby ordered, that G. B. M., Bsq., be, and he is hereby, appointed a referee to examine the said account and make re- port thereon to this court within two weeks, and that the settle- ment of said account be adjourned until Monday, the eleventh day of Jidy, 1905, at eleven o'clock A. M. NOTE. — In California all matters including allowed claims not passed upon on the settlement of any former accouut, or on rendering an ex- hibit, or on making a decree of sale, may be contested by the heirs, for cause shown. The hearing and allegations of the respective parties may be postponed from time to time, when necessary, and the court may appoint one or more referees to examine the accounts and make iei»urc thereon, subject to confirmation; and may allow a reasonable compensa- tion to the referees, to be paid out of the estate of the decedent: Cal. Orders. 771 C. C. P., sec. IG.-Je; .Alaflka, Codos, pt. 4, c. 86, sees. 859, 862-871; Arizona, C. C, par. 3870; Idaho, C. C. P., sec. 4256; Montana, C. C. P., sec. 2794; Nevada, Corap. Laws, sec. 2992; New Mexico, Comp. Laws, see. 2005; North Dakota, Probate Code, sees. 6412, G413; South Dakota, Probate Code, sec. 286; Utah, Rev. Stats., sec. 3947; Washington, Ballingcr's Codes, sec. 6330; Wyoming, Eev. Stats., sec. 4724. No. 1341. — Order — Account to be Settled, Notice of. [Title of Court and Estate.] M. /., the administratrix of the estate of T. J., deceased, hav- ing this day rendered and presented for settlement, and filed in this court her first annual account of her administration of es- tate of said deceased : It is ordered, that Monday, the tzventy-seventh day of June, igo6, at II o'clock A. M., be, and the same is hereby, appointed for the settlement of the said account; and that the clerk give notice thereof, by causing notices to be posted in at least three public places in this city and county, at least ten days before said day of settlement, according to law. NOTE.— California, C. C. P., see. 1633. The clerk set the account for hearing without an order to do so. The above order is upon the ground that the court deems the notice given bv the clerk is insufficient: Alaska, Codes, pt. 4, c. 86, sees. 862-871; Arizona, C. C, par. 1867; Idaho, C. C. P., sec. 4253; Montana, C. C. P., sec. 2791; Nevada, Comp. Laws, sec. 2973; New Mexico, Comp. Laws, sec. 2005; North Dakota, Probate Code, sec. 6496; Oregon, Codes and Statutes, sec. 1202; South Dakota, Probate Code, sec. 283; Utah, Rev. Stats., sec. 2942; Washington, Ballingcr's Codes, sec. 6327; Wyoming, Rev. Stats., sec. 4722. No. 1342. — Order Directing Executor to Pay Legatee His Share of an Estate. [Title of Court and Estate.] The petition of A. B. for an order directing /. C. R., the ex- eaitor of the last v^-ill of S. D., deceased, to pay him the legacy of $10,000 given him by said will, coming on this day to be heard, and the matter having been submitted for decision, it is ordered that /. C R., the executor of said will, pay said A. B. $10,000 in full of his legacy upon the delivery to him, said executor, of a bond in the sum of $1,000 with sureties to be approved by the judge of this court, conditioned for the payment, whenever re- quired, of his proportion of the debts due from the estate, not exceeding the amount of the said legacy. NOTE. — As a matter of course, a $1,000 bond upon receipt of a $10,000 legacy is improbable, unless the court and executor are certain that there ifi no danger of there being a mistake made: Cal. C. CL P., sees. 1658- i / 2 New Book of Forms. 1661; Arizona, C. C, pr.r. 18S6; Idaho, C. C. P., sec. 4270; Montana, C. C. P., sec. 28S0; Nevada, Comp. Laws, sec* 2993; North Dakota, Probate Code, sec. 6426; Oregon, Codes and Statutes, sec. 1222; South Dakota, Probate Code, sec. 299; Utah, Lev. Stats., see. 3948, Laws 1901, p. 181; Washington, Ballinger's Codes, sec. 6347; Wyoming, Kev. Stats., sec. 4S26. No. 1343. — Order Directing Executor to Invest Moneys in His Bonds — Securities of the State of California. [Title of Court and Estate.] It appearing to the court upon the hearing of the petition of A. B., tlic widow of the said C. B., deceased, that the executor of the last will of said deceased has, in his possession, $100,000 in gold coin of the United States, which money is on general deposit with The People's Home Bank, without interest, and it being for the best interests of said estate that said money be invested in good securities, it is ordered that said executor purchase in open market, at a price not above par, 100 Indian War Bonds issued by the state of California, under the act of May s, 1S52. NOTE. — Pending the settlement of estates, a court may, on the peti- tion of an interested party, make such order: Cal., C. C. P., sec. 1640; Arizona, C. C, par. 1874; Idaho, C. C. P., sec. 4223; Montana, C. C. P., sec. 2798; North Dakota, Probate Code, sec. 6503; South Dakota, Probate Code, sec. 290; Utah, Eev. Stats., see. 3925. No. 1344. — Order Directing Publication Notice of Application for Order Directing Executor to Invest Moneys of an Es- tate. [Title of Court and Estate.] It is ordered that the clerk of this court give notice by publica- tion in the ''R." once a week for two weeks, to all interested per- sons to show cause before the court on Friday, June j, igod, at 10 o'clock A. M., why the executor of the last will of C. B., de- ceased, should not invest $100,000 of the moneys of said estate in securities of the United States or of the state of California. NOTE.— California, C. C. P., sec. 1640; Arizona, C. C, par. 1874; Idaho, C. C. P., sec. 4223; Montana, C. C. P., sec. 2798; North Dakota, Probate Code, sec. 6503; South Dakota, Probate Code, sec. 290; Utah, Bev. Stats., sec. 3925. No. 1345 — Order Approving of Adminisrator's Payment of Debt Without Creditor's Affidavit. [Title of Court and Estate.] It appearing to the court that A. B., the administrator of this estate, paid C. D. a claim of $3,727.50, within the time limited by Orders. 773 law for the payment of such claims, hut without the afTulavit or other proof of said claim retjuircd by law, and it having been proven by competent evidence, to the satisfaction of the court, that said amount was a just dcl)t, and was due against the said estate, and was paid in good faith, that said amoimt was the true amount of such indebtedness over and above all payments or set- offs, and the said estate being solvent, the said amount is allowed the said administrator in the settlement of his accounts. NOTE. — Under such circumstances "it is the duty" of the court to allow the claim. It must be siiown "tliat such dfbts were justly due; were paid in good faith; that the amount paid was the true amount of such intU'bteilncss, o\ cr and above all paymeuts, at setoffd, " and the estate is solvent: Cal. C. C. P., sec. 1632. The difference between the statutory affidavit to creditor's claims (Id., sec. 1494), and the proof necessary to acquit an administrator if he Ijas paid such claim under Id., sec. 16^2, is marked: Alaska, Codes, pt. 4, c. 84, sees. 820-829; Arizona, C. C, par. 1866; Idaho, C. C. P., sec. 42.52; Montana, C. C. P., sec. 2790; North Dakota, I'robate Code, sec. 6403; Utah, Eev. Stats., sec. 3944; Washington, Ballinger's Codes, sec. 6325. No. 1346. — Order Directing Adrnmistrator to Execute Con- veyance and Possession Surrendered, [Title of Court and Estate.] [The seme as in the order directing conveyance ; then continue iis foUozvs:] And it is further ordered that said administrator, without any delay, execute and deliver said conveyance and surrender the pos- session of said property to said petitioner; and it is also ordered that all persons in possession of said property holding under said administrator surrender the same to said petitioner upon the pro- duction of the deed of said administrator executed by direction of this order, and a certified copy of this order. NOTE.— California, C. C. P., sec. 1607; Arizona, C. C^ par. 1846; Idaho, C. C. P., sec. 4234; Montana, C. C. P., sec. 2760; North Dakota, Probate Code, sees. 6456-6459; Utah, Eev. Stats., see. 3940. No. 1347. — Order Denying Petition for an Order Directing Administrator to Convey Land. [Title of Court and Estate.] The petition of A. B. for an order directing the administrator of the estate of E. F., deceased, to convey to him the land described in his petition, having been heard and submitted for judgment, and it being doubtful that the petitioner has the right to demand 774 Ne;w Book o^ Forms. specific performnnce of the contract described in his petition, it is ordered that his petition be, and it is, denied. NOTE. — If, in the opinion of the court, the right of the petitioner to have a specific pcrfornianee of the contract is doubtful the petition must be denied. In such case action for specific performance of the contract may be brought within six months: Cal. C. C. P., see. 1602; Arizona, C. C, par. 18-41; Idaho, C. C. P., sec. 4229; Montana, C. C. P., sec. 2755; North Dakota, Probate Code, sees. 6456-6459; South Dakota, Probate Code, sees. 254-264; Utah, Rev. Stats., sec. 3938; Wyoming, Eev. Stats., Bee. 4822. No. 1348. — Order Approving an Administrator's Agreement to Compound With a Debtor. [Title of Court and Estate.] A. B., the administrator of the estate of C. D., deceased, hav- ing accepted a payment of $600 in satisfaction of a debt of $s,- 7-5-50, owing by B. F. to said estate, which debt was appraised at $3,7^5-50 in the inventory and appraisement on file in said es- tate ; and it appearing to the court that said B. F. is insolvent, and that he has assigned all his property to the sherifif of the county of Nevada for the benefit of all his creditors, and that said assign- ment was made in manner and form as is by law required, and it appearing that all the creditors of the said B. F., have agreed to accept the same proposition of their demand, it is hereby ordered that the said A. B., as administrator, aforesaid, give the said B. F. a discharge of said debt. NOTE. — Such order may be made at any time when it appears to be just, and for the best interests of the estate: Cal. C. C. P., see. 1588; Arizona, C. C, par. 1832; Idaho, C. C. P., sec. 4219; Montana, C. C. P., sec. 2737; Nevada, Comp. Laws, sec. 2957; North Dakota, Probate Code, sec. 6477; Oregon, Codes and Statutes, sec. 1211; South Dakota, Probate Code, sec. 249; Utah, Rev. Stats., sec. 3921; Washington, BaUiugur's Codes, sec. 6301; Wyoming, Eev. Stats., sec. 4702. No. 1349. — Order Directing Administrator to Execute Lease. [Title of Court and Estate.] The matter of the petition of the administratrix of the estate of C. D., deceased, coming on this day to be heard, it is ordered that she execute a written lease of the premises described in her peti- tion to G. H. for five years from the date of the lease, for the min- imum sum of $12,000, gold coin of the United States, to be paid in 60 equal installments of $200, to be paid on the Urst day of each Orders. 775 month during said term. Said lease not to be sublet, assigned or surrendered, without an order of this court until distribution is made of the property described in the lease. NOTE. — The order may prescribe the minimum rental to be received for the premises, and the period of the lease which in no ciiao must be longer than for five years, and the court may prescribe other terms and con.litions of such lease: Cal., C. C. P., sec. 1579; Arizona, C. C, par. 1824; Kew Mexico, Comp. Laws, sec. 2079. No. 1350.— Order that Executor "Without Bond" File a Bond- [ Title of Court and Estate.] It appearing to the court that it is necessary for the security of those interested in this estate that A. B., the executor of the will of C. D., deceased, give a bond for the faithful performance of his duties as executor, it is hereby ordered that A. B., executor of the will of C. D., deceased, file in the matter of said estate, a bond to be approved by the judge of this court in the sum of $yo- 000, in form and manner as is by law required; and that such bond be presented for approval within ten days from the date of this order. This order is made upon the motion of the judge of this court. NOTE. — Such an order may be made upon a judge's "own motion" and applied to all bonds that may be given in probate matter. The above order is drawn under section 1396, Code of Civil Procedure, and refers to an executor who has been relieved by a will from the obligatioa of giving a bond: Cal. C. C. P., sees. 1394-1402; Alaska, Codes, pt. 4, c. 81, sees. 785, 786; Arizona, C. C, pars. 1673, 1681; Idaho, C. C. P., sees. 4068, 4076; Montana, C. C. P., sees. 2477, 2485; Nevada, Comp. Laws, sees 2843, 2851; Oregon, Codes and Statutes, sec. 1107; South Dakota, Probate Code, sec. 108; Utah, Bev. Stats., sec. 3832; Washington Bal- linger's Codes, sees. 6161, 6103; Wyoming, Kcv. Stats., sec. 46 /a. No. 1 35 1. — Order that Application for Letters and Contest for Letters Vv^ill be Heard Together. [Title of Court and Estate.] It is ordered that the application of A. B. for letters of admin- istration upon the estate of E. P., deceased, and the contest of C. D. opposing the petition of A. B., and the petition of C. D. that letters of administration be granted to him upon said estate, be set for hearing on the 3d day of June, 1906, at 10 o'clock A. M., and be heard together. NOTE. — California, C. C. P., sec 1374; Arizona, C. C, par. Ifi'R; Idaho, C. C. P., sec. 4050; Montana, C. C. P., sec. 2443; Nevada, Comp. Laws, sec. 2829; South Dakota, Probate Code, see. 89; Utah, Eev. Stats., sec. 3819; Wyoming, Eev. Stats., sec. 4649. 7/5 New Book of I'orms. No. 1352. — Order Directing Letters of Administration to Guardian of Person Entitled to. [Title of Court and Estate.] State of California, County of Butte, — ss. It appearing- that A. B. is, in order of precedence, entitled to letters of administration upon the estate of C. D., deceased, and it also appearing that A. B. is a minor, and that B. F. is his duly appointed, qualified and acting guardian of the person and estate of A. B., the said E. F. is hereby appointed administrator of the estate of C. D., deceased. NOTE. — In such case letters may be issued in the discretion of the court: Cal. C. C. P., see. 1368. If a minor is named executor another person may be substituted until the majority of the minor: Id., sec. 1354. When such minor reaches his majority the guardian's letters may be revoked and then issued to the former ward: Id., sec. 1383; Alaska, Codes, pt. 4, c. 88, sees. 887-917; Arizona, C. C, pars. 1641, 1650; Idaho, C. C. P., sees. 4036, 4044; Montana, C. C. P., sees. 2405, 2433; Nevada, Comp. Laws, sec. 2817; North Dakota, Probate Code, sees. 6213-6219; Oregon, Codes and Statutes, sec. 1117; South Dakota, Probate Code, sec. 83; Utah, Eev. Stats., sec. 3803; Washington, Ballinger's Code, see. 6127; Wyoming, Eev. Stats., sec. 4632. No- 1353- — Order Establishing the Fact that One of Two Ex- ecutors is Absent from the State.. [Title of Court and Estate.] It appearing to the court that A. B., one of the two executors of the last will of C. D., deceased, was absent from the state of California all the time between July 3, igo§, and August 6, ipo6, and it appearing to the court that during said period £. F., the other executor of said last will did, between said dates, manage said estate and performed all the acts of administrating said es- tate as if he was the only qualified executor, now, it is hereby ad- judged that all the said acts of the said B. F. have now, and shall hereafter have, the same legal effect as if the said A. B. was pres- ent during said time and joined with his coexecutor in all said acts. NOTE. — The reason for this order is the necessity of having a record showing that E. F. had authority to act in the absence of his coexecutor: Cal., C. C. P., sec. 1355. A similar order would be proper in case a coexecutor labors under disability: Arizona, C. C, par. 1642; Idaho, C. Q. P., sec. 4037; Montana, C. C. P., sec. 2406; Nevada, Comp. Laws, sec. 2818; South Dakota, Probate Code, sec. 75; Utah, Rev. Stats., sec. 3910; Washington, Ballinger's Codes, sec. 6133. OlO^URS. 'i'J'J No. 1354. — Order Removing Administrator After Contest of His Account, or Statement Contained in It, [Title of Court and Estate.] The administrator of this estate having filed his first annual ac- count, and a statement therein appearing that he had paid $20 to the publisher of the "D. B. & S. H.," for publishing notice to creditors, in the matter of said estate, as per voucher No. 36/, and at the hearing of said account before this court, C. D., one of the heirs at law of the said deceased, and interested in said es- tate, contested said payment, and, at the hearing of said contest, it was established to the satisfaction of this court that said admin- istrator paid in full for said advertisement $13, and no more, and has appropriated $j of said $20 for his personal uses ; and said $5 not allowed as cliarged against said estate. Thereafter, the said administrator was cited to show cause before this court why his letters should not be revoked, and at the hearing of the matter last aforesaid the said administrator appeared in person, and by counsel, and admitted said appropriation, but pleaded the custom of the "trade of printers and publishers" of legal notices, in jus- tification, and said matter having been submitted for judgment, it it is hereby ordered that the letters of administration issued to A. B., as administrator of the estate of E. F., deceased, be, and they are hereby revoked. NOTE. — The conrt may examine the execntor or administrator, and if he has been guilty of neglect, or has wasted, embezzled, or mismanaged the estate, his letters must be revoked: Cal., C. C. P., sec. 1626. A judge may, if so minded, not wait for a charge to be presented at the law in motion "from his own knowledge" or "from credible in- formation": Id., sec. 1436. The same form may be used when an administrator's clerk or other agent accepts similar "drawbacks" with the knowledge of the admin- istrator; Arizona, C. C, pars. 1705, 1858; Idaho, C. C. P., sees. 4090, 4246; Montana, C. C. P., sees. 2540, 2784; Nevada, Comp. Laws. sees. 2026, 2974; North Dakota, Probate Code, sees. 6362-6371; South Dakota. Probate Code, sees. 272-290; Washington, Ballingcr's Codes, see. 2.T19, 6167; Oregon, Codes and Statutes, sec 1203; Wyoming, Kev. Stats., sees. 4622, 4716, No. 1355. — Order — Executor — His Right Forfeited. [Title of Court and Estate.] /. S., the person named by H. S. in his last will as execntor thereof, having delayed more than thirty days after the dcith of said H. S., and without good cause for more than thirty 'h'ys after he had knowledge of the death of said H. S., having n.g- 778 New Book of Forms. lected to petition the court having jurisdiction of said estate for letters testamentary in said estate, the said /. S. has renounced his right to said letters. NOTE. — In California, if a person knows that he is named in a will as executor, and has knowledge of the death of the testator, and fails to petition for the probate of the will for thirty days after he has knowl- edge of said death, the court may appoint some other person executor unless good cause for delay is shown: Cal. C. C. P., sec. 1301. This order may be made when another person (the public admin- istrator), petitions for letters, with the will attached, and the ground of his application is the neglect stated in the order. It would be good form to insert the above in the order granting letters: Alaska Codes, pt. 4, c. 80, sees. 772-800; Arizona, C. C, par. 1603; Idaho, C. C. P., sec. 3998; Montana, C. C. P., see. 2323; New Mexico, Comp. Laws, sees. 1935- 1945; North Dakota, Probate Code, sec. 6316; South Dakota, Probate Code, sees. 37, 38; Utah, Rev. Stats., sec. 3788; Washington, Ballinger's Codes, sec. 4574; Wyoming, Eev. Stats., see. 4574, No. 1356. — Order — Letters Revoked. [Title of Court and Estate.] S. B., the administrator of the estate of H. S. W., deceased, having neglected to file a new bond within the time ordered by this court, it is hereby ordered that the letters of administration in said estate heretofore granted to the said S. B., be, and the same are hereby, revoked. NOTE.— California, C. C. P., sees. 1400, 1405. For misconduct, see Id., sees. 1627, 1630. Failure to obey citation. Id., sees. 1384, 1385. For not obeying citation, Id., sec. 1437. For contempt, Id., sec. 1721. For failure to return inventory. Id., sec. 1450. For not giving notice to creditors, Id., see. 1511. For not returning sale, Id., sec. 1575. For failure to account, Id., sec. 1630. When account shows neglect he may be, Id., sec. 1620; Alaska Codes, pt. 4, e. 80, sees. 772-800; Arizona, C. C, par. 1679; Idaho, C. C. P., sec. 4074; Montana, C. C. P., sec. 2483; Nevada, Comp. Laws, sec. 2849; North Dakota, Probate Code, sec. 6360; Oregon, Codes and Statutes, sec. 1124; South Dakota, Probate Code, sec. 134; Washington, Ballinger's Codes, sec, 6160; Wyoming, Eev. Stats., see. 4673, No. 1357. — Order Directing Notice of Procedings for Re- moval of Executor to be Given by Publication and Mail. [Title of Court and Estate.] It is ordered that a citation issue directed to C. D., executor of the will of B. F., deceased, commanding him to appear in per- son or by attorney in this court, on Friday, June j, igo6, at 10 o'clock A. M., and show cause why his letters should not be re- voked, and it is ordered that said citation be published in the "Recorder," a San Francisco paper, once a week, for four weeks. Orders. 779 It is also ordered that a copy of said publication and a certified copy of the petition of A. B., filed herein, be inclosed in a sealed envelope, directed to C. D. at Rochester, Monroe county, state of New York, and the postage paid thereon, and also that said let- ter be registered in the United States postoffice prior to May 10, igo6. NOTE.— Notice may he given by publication of the pendency of the proceedings in such manner as the court may direct, and the court may l>roet'ed upon such notice as if the citation had been persoually served: Cal. C. G. P., sec. 1439. In this particular matter the citation, although not in the form of a notice, appears to be all that is necessary. The very careful may inclose with the citation a formal notice, if that way inclined. If so, it will be difficult to prove service except by mailing it under Code of Civil Procedure, 1005: Arizona, C. C, par. 17U8; Idaho, C. C. P., sec. 4102; Montana, C. C. P., sec. 2543; Nevada, Corap. Laws, sec. 3030; North Dakota, Probate Code. sees. 6302-6371; South Dakota, Probate Code, Bee. 137; Washington, Ballinger's Codes, sec. 6170; Wyoming, Rev. Stats., see. 4625. No. 1358. — Order Suspending Executor. [Title of Court and Estate.] It appearing to the court from credible information that A. B., the executor of the will of said deceased, has mismanaged the property of the said estate committed to his charge, it is hereby ordered that the powers of the said A. B., as executor, be, and they are hereby, suspended until the matter is investigated. This order is to take effect this 3d day of June, A. D. 1906, at 12 o'clock M. NOTE. — California, C. C. P., sec. 1436. This form may be used when an executor or administrator's management of an estate comes within the enumerated events mentioned iu Code of Civil Procedure, sec. 1436. The source of the information upon which a judge acts in removing an executor is immaterial: Estate of Kelley, 122 Cal. 379; Arizona, C. C, par. 1705; Idaho, C. C. P., sec. 4099; Montana, C. C. P., sec. 2540; Nevada, Comp. Laws, sec. 3026; North Dakota, Probate Code, sees. 6362-6371; South Dakota, Probate Court, sees. 1.33-137; Washington, Ballinger's Codes, sec. 6167; Wyoming Rev. Stats., sec. 4622. No. 1359. — Order Directing Notice to Be Given to Suspended Executor. [Title of Court and Estate.] An order having this day been made, suspending A. B. from his functions as executor of the said estate, it is hereby ordered that the clerk of this court notify said A. B. oi said order of sus- 78o New Book of Forms. pension, and cause to be issued and served on him a citation to appear and show cause before this court, on the 12th day of June, ipo6, why his letters should not be revoked. NOTE. — California, C. C. P., sec. 1437. If the information eomes to the court in the form of an affidavit, or record, or in any other torm suiEcieut to cause a court to act upon "credible information" as pro- vided in Code of Civil Procedure, section 1436, the notice and service of citation will naturally be waived by the informer or his attorney. It is not necessary to suspend an executor before citing him to appear. The object being to remove him, the court may reach the ultimate object by a direct proceeding without a prior suspension: Estate of Xtlley, 122 Cal. 379, .55 Pae. 136; Arizona, C. C, par. 1706; Idaho, C. C. P., sec. 4100; Montana, C. C. P., sec. 2541; Nevada, Comp. Laws, sec. 302S; North Dakota, Probate Code, sees. 6362-6371; South Dakota, Pro- bate Code, sees. 133-137; Washington, BalLinger's Codes, sec. 6168; Wyoming, Eev. Stats., sec. 4623. No. 1360. — Order Directing Executor to Show^ Cause Why His Letters Should not be Revoked — Failure to Return Account of Sale. [Title of Court and Estate.] It appearing to the court from the affidavit of A. B. that C. D., the executor of the will of said deceased, has neglected to make a return of a sale of personal property sold by him by order of this court on May j, igo6, within thirty days from after said sale, it is ordered that the clerk of this court give said C. D. notice to ap- pear before this court on Friday, August 5, igo6, and show cause why his letters should not be revoked because of said neglect. NOTE. — If such return is not made within thirty days after the sale, his letters may be revoked, or he may be punished by attachment, or his letters may be revoked after one day's notice: Cal. C. C. P., sec. 1575. See Id., sees. 1436-1440, for removal and suspension. Arizona, C. C, par. 1814; Idaho, C. C. P., sec. 4209; Montana, C. C, sec. 2707; Nevada, Comp. Laws, sec. 2948; North Dakota, Probate Code, sees. 6362-6371; South Dakota, Probate Code, sec. 238; Utah, Eev. Stats., sec. 3883; Wyoming, Rev. Stats., sec. 4815. No. 1361. — Order — Statement — Executor to File. [Title of Court and Estate.] It is ordered that the executor of this estate forthwith return and file a statement of all claims against this estate that have been presented to him up to and including the date said report is filed. Said claim to be in compliance with section 15 12 of the Code of Civil Procedure of the state of California. Okocrs. 781 NOTR.— Oalifornia, C. C. P., sec. 1625; Alaska, Codes, pt. 4, c. 86, sees. 859-871; Arizona, C. C, par. 1857; Idaho, C. C. P., sop. 4245; Muntana, C. C. P., sec. 2783; New Mexico, Comp. I^aws, sees. 19*51, 2(JU5, 20U6; North Dakota, Probate Code, sees. 6486-0503; South Dakota, Probate Code, sec. 190; Wyoming Rev. Stats., see. 4715. No. 1362. — Order Removing Executor for Neglecting to Give Notice to Creditors. [Title of Court and Estate.] The administrator of this estate having neglected for two months to give notice to the creditors thereof, and after citation being issued, served on him to show cause for said neglect, and said citation having been served and returned as provided by law, and the said administrator not appearing as commanded, but made default, it is hereby ordered that the letters of administration upon the estate of the said E. F., deceased, issued to said A. B., be, and they are hereby, revoked, and A. L., the next in kin to said de- ceased, is hereby appointed administrator of said estate, and that letters issue to him upon giving a bond as required by law, in the sum of $5,000. NOTE. — If such officer neglects for two months after his appointment to give such notice, his letters may be revoked and the next of kin or some other person may be appointed in his stead: Cal., C. C. P., sec. 1511. It has been held that when a widow is appointed and the estate is of less value than fifteen hundred dollars, her letters cannot be revoked because she did not give notice to creditors, because the entire estate must be distributed to her, under Code of Civil Procedure, sec. 1469: Estate of Atwood, 127 Cal. 427, 59 Pac. 770; Arizona, C. C, par. 1760j Idaho, C. C. P., sec. 4153; Montana, C. C. P., sec. 2621; Nevada, Comp. Laws, sec. 2907; North Dakota, Probate Code, sees. 6352-6371; South Dakota, Probate Code, sec. 189; Washington, Ballinger's Codes, sec. 6244. No. 1363. — Order Directing Administrator to Shov^r Cause Why He Should not be Removed for Omitting to Cause Property to be Appraised. [Title of Court and Estate.] It appearing to the court from the affidavit of A. B. that after the inventory in the matter of the said estate had been made and filed, a large amount of silver household ornaments and silver tableware, such as spoons, plates, etc., valued at over $2,000, the property of said estate, came to the possession of C. D., the admuiistrator thereof, and that no part of said property was men- tioned in said inventory, and more than two months having elapsed since said inventory was filed, and the said C. D., not 782 New Book of Forms. having caused the said propert}' to be appraised in the manner prescribed by law, it is ordered that the clerk of this court cause notice to be served on the said C. D. to show cause before this court on June 5, ipo6, at 10 o'clock A. M., why he should not be removed from his ofifice of administrator of said estate because of said failure. It is also ordered that said notice be served at least ten days prior to the time set for hearing, and that a copy of the affidavit of said A. B. be served with said notice. NOTE. — The punishment may be attached for contempt or removal from office: Cal. C. C. P., sec. 1451. Also when it comes to the knowledge of a judge that the bond men- tioned above is from any cause, insufficient, the judge without petition or application, must, on his own motion, cause him to be "cited to show cause why he should not give further security." The judge is given full powers to proceed upon his own information, knowledge, or belief, as he would or could have proceeded upon petition. When a petition is filed he causes "notice" to be given; but when he acts upon his own knowl- edge, he causes a "citation" to be served: Cal. C. C. P., sec. 1402; Arizona, C. C. P., par. 1681; Idaho, C. C. P., sec. 4076; Montana, C. C. P., sec. 2485; Nevada, Corap. Laws, sec. 2851; North Dakota, Probate Code, sees. 6362-6371; South Dakota, Probate Code, 138-145; Washington, Ballinger's Codes, sec. 6161; Wyoming, Eev. Stats., sec. 4675. No. 1364. — Order — Administrator, Special, Appointing. [Title oT Court and Estate.] [to be by the clerk entered upon the court's minutes.] Application having been made for the appointment of a special administrator to take charge of the estate of /. B., deceased, until the qualification of an administrator of the estate of said deceased, or until the further orders of this court, it is ordered that S. B., Esq., be, and he is hereby, appointed special administrator of the estate of said deceased to collect and take charge of the estate of said deceased in whatever county the same may be found, and to exercise such other powers as may be necessary for the preser- vation of the estate of said deceased [or the order may be that the public administrator take charge of the estate], NOTE. — In California, the appointment may be made at any time, and without notice, and must be made by entry upon the minutes of the court, specifying the powers to be exercised by the administrator. Upon such order being entered, and after the person appointed had given bond, the clerk must issue letters of administration to such person, in conformity with the order: Cal., C. C. P., sec. 1412; Alaska, Codes, pt. 4, c. 80, sees. 772-800; Arizona, C. C, par. 1688; Idaho, C. C. P., sec. 4082; Montana, C. C. P., sec. 2501; Nevada, Comp. Laws, sec. 2856; New Mexico, Comp. Laws, sees. 1935-1945; North Dakota, Probate Code, see. 6325; South Dakota, Probate Code, sees. 119-125; Utah, Bev. Stats sec 3822; Wyoming, Rev. Stats., sec, 4640. Orders. 783 No. 1365. — Order — Administrator, Special, Appointing. [Title of Court and Estate.] It is ordered that /. PF. be, and he is appointed special admin- istrator of the estate of H. W., deceased, to collect and take charge of the estate of said decedent, in whatever county or counties the same may be found ; and to exercise such other powers as may be necessary for the preservation of the estate ; and that special letters of administration of the estate of said decedent issue to said /. W., upon his giving a bond in the sum of $10,000. NOTE.— California, C. C, P., sec. 1412, No. 1366. — Order Appointing Special Administrator. [Title of Court and Estate.] It is ordered that A. B. be, and he is hereby, appointed special administrator of the estate of C. D., deceased, to collect and pre- serve for the executor, or administrator, when hereafter appoint- ed, all the goods, chattels, debts, and effects of the decedent; all his incomes, rents, issues, and profits, claims, and demands, to take the charge and management of, enter upon and preserve from damage, waste, and injury, his real estate; and for such and all necessary purposes to commence and maintain or defend suits and other legal proceedings as an administrator might or could ; and it is ordered that letters be issued to him upon his filing a bond, to be approved by the judge of this court, in the sum of $10,000. NOTE.— California, C. C P., sees. 1412, 1704; Alaska, Co-les, pt. 4, c. 15, see. 780; Arizona, C. C, par. 1688; Idaho, C. C. P., see. 4082; Montana, C. C. P., sec. 2501; Nevada, Comp. Laws, sec. 2856; New Mexico^ Conip. Laws, sees. 1946, 2020; North Dakota, Probate Code. sec. 6325; South Dakota, Probate Code, sees. 119-125; Utah, Eev. Stats., sec. 3822; Wyoming, Eev. Stats,, sec. 4640. No. 1367. — Order Suspending the Powers of Adm.inistrator Until It can be Determined if He has Wasted Estate. [Title of Court and Estate.] In this matter, upon reading and filing the petition of A. B., praying that C. D., the administrator of said estate, be required to give further security and that his powers be suspended until the matters contained in said petition can be heard and determined, it is hereby ordered that the powers of C. D., as administrator of 784 New Book op Forms. the estate of B. F., deceased, be, and they are hereby, suspended until the matter of said petition can be heard and determined ; and that a copy of this order be served upon said administrator. NOTE. — When a petition is presented praying that an executor or administrator be required to give further security, etc., he may be sus- pended until the matter can be heard: Cal. C. C. P., sec. 1401; Arizona, C. C, par. 1608; Idaho, C. C. P., sec. 4075; Montana, C. C. P., sec. 2484; Nevada, Comp. Laws, sec. 2050; North Dakota, Probate Code, sees. 6362- 6371; South Dakota, Probate Code, sec. 133; Wyoming, Eev. Stats., sec. 4674. No. 1368. — Order — Administrator, Appointing. [Title of Court and Estate.] The petition of H. J., praying for letters of administration of the estate of T. J., deceased, coming on regularly to be heard, and due proof having been made to the satisfaction of this court that the clerk had given notice in all respects according to law ; and all and singular the law and the evidence being by the court understood and fully considered: Whereupon, it is by the court here adudged and decreed that said T. /. died on the seventeenth day of May, igo6, intestate, in tlie city and county of San Fran- isco; that he was a resident of said city and county at the time of his death, and that he left estate in the city and county of San Francisco, and within the jurisdiction of this court. It is ordered that letters of administration of the estate of the said T. J., deceased, issue to the said petitioner, H. J., upon his taking the oath, and filing a bond according to law, in the sum of $io,yoo. NOTE. — In California, on the hearing, it being first proved that notice has been given of the application, the court hears the proofs and then orders letters to issue to the party entitled: Cal. C. C. P., sec. 1375; Alaska, Codes, pt. 4, c. 80, sees. 772-800; Arizona, C. C, par. 1657; Idaho, C. C. P., sec. 4051; Montana, C. C. P., sec. 2444; Nevada, Comp. Laws, sec. 2830; New Mexico, Comp. Laws, sees. 1935-1945; North Dakota, Probate Code, sees. 6313-6324; South Dakota, Probate Code, sec 90; Wyoming, Eev. Stats,, sec. 4650. No. 1369. — Order — Administrator — Security, Further, to Give. [Title of Court and Estate.] In this matter it is ordered that the prayer of the petition of H. S. be granted to the extent that S. B., the administrator of the estate of H. S. W., deceased, within ten days from the date of this order, file a new bond as administrator of said estate in the sum of ten thousand dollars. Said bond to be submitted to me for approval on or before ten days from date. Orders. yS$ NOTE. — In California, if it appears that the srcnrity is, from any cause, insufficient, the court may make an order requiring the executor or administrator to give further security, or to fiJe a new bond in tho Dflual form within a reasonable time, not less than five days: CaJ. C. C P., sec. 1399; Alaska, Codes, pt. 4, c 80, sees. 772-8U0; Arizona, C. C^ par. 1678; Idaho, C. C. P., sec 4070; Montana, C. C. P., 3/>c. 2482; New- Mexico, Comp. Laws, sees. 2007-2010; l^forth Dakota, Probate Code, scca. 6358-G361; South Dakota, Probate Code, sees. 109, 110. No. 1370. — Order Declaring Estate Community Property. [Title of Court and Estate.] [This form will do for any case. State the preHminary facts and tlien proceed :J It is therefore adjudged and decreed that the land hereinafter described was, during the Ufetirae of said deceased, and at the time of her death, the community property of said deceased and said A. B., her husband, who were, when the same was acquired by said deceased, husuand and wife, and that the said land became at the death of the said deceased, the property of said husband and is now vested in the said husband, free of all right, title, claim or demand of any odier person claiming under tlie said C. B., de- ceased, as heir or otlierwise. The said land is situated in the county of Napa, state of California, and is described as follows : [Description.] NOTE.— California, C, a P., sees. 1705-1723; Idaho, C. C. P., sec. 4281; Montana, C. C. P., sec 2930; Utah, liev. fciuts., sec. 3572; Wyoming, Bev. Stata, sec 4556. No. 137 1. — Order that Disputed, Contingent, or Claim not Due, be Paid into Court. [Title of Court and Estate.] [Clause in order for payment of debts.] It is ordered that the claim of A. B. C, for $3,256, described in said account as not due [or is contingent, or disputed], be paid into this court there to remain and be paid to the said A. B. C. when he becomes entitled tliereto. NOTE. — If a party fails to establish his claim, the court "into" which it is paid will distribute or pay it as the circumstances of the estate require: Cal. C. C. P., sec. 1C4S; Arizona, C. C, par. 1880; Idaho, C. C. P., sec. 4264; Montana, C. C. P., sec. 2815; Nevada, Comp. Laws, sec 2986; North Dakota, Probate Code, sec. 6425; South Dakota, Probate Code, sec. 296; Utah, Eev. Stats., sec. 3874; Washington, Ballinger'a Codca, see. CHoS; Wyoming, Eev. Stats., sec. 4731. New Forms- — 50 ^86 Nsw Book of Forms. No. 1372, — Order — Debtor to be Examined. [Title )f Court and Cause.] On reading the foreg-oing affidavit, and it satisfactorily appear- ing to me therefrom that said /. P. S., the defenidant in the above-entitled action, has property which he unjustly refuses to apply toward the satisfaction of the judgment in said action ; and that it is a proper case for this order, and on application of the plaintiflf's attorney, I, the undersigned, judge of the said superior court, do hereby order and require the said defendant, J. P. S., personally to be and appear before N. M. L., court commissioner of said court, as referee, hereby appointed for that purpose, at his office. No. 5S3 Kearny street, in the city and county of San Fran- cisco, on the sixteenth day of November, 1906, at eleven o'clock in the forenoon of that day, to answer concerning his property; and that a copy of said affidavit and of this order be previously served upon said defendant at least fi,ve days prior to the said sixteenth day of November, ipo6. NOTE. — In California, when an execution against property of a judg- ment debtor is issued to the sheriff of the county where he resides, or if he does not reside in this state, to the sheriff of the county where the judgment-roll is filed, is returned unsatisfied in whole or in part, the judgment creditor, at any time after such return is made, is entitled to an order from a judge of the court, requiring such judgment debtor to appear and answer concerning his property before such^ judge, or a referee appointed by him, at a time and place specified in the order; but no judgment debtor must be required to attend before a judge or referee out of the county in which he resides. After the issuing of an execution against property, and upon proof, by affidavit, of a party or otherwise, to the satisfaction of a judge of the court, that anv judgment debtor has property which he unjustly refuses to apply toward the satisfaction of the judgment, such judge may, by an order, require the judgment debtor to appear at a specified time and place, before such judge, or a referee appointed by him, to answer concerning the same; and such proceedings may thereupon be had for the application of the property of the judgment debtor toward the satisfaction of the judgment, as are provided upon the return of an execution: Cal. C. C. P., sees. 714, 715; A]a,ska, Codes, pt. 4, c. 14, sees. 135-162; Arizona, C. C, pars. 2584-2591; Idaho, C. C. P., sees. 3562-356S; Montana C. C. P., sec. 1263; Nevada, Comp. Laws, sees. 3335-3342; New Mexico Comp. Laws, sees. 3107, 3377; North Dakota, C. C. P., sec. 5566- Oregon' Codes and Statutes, sees. 254-258; South Dakota, C. C. P., sec 398- Utah, Rev. Stats., sees. 3272-.^2Sl; Wnslnngton, Ballinger's Codes scea. 5312-5345; Wyoming, Eev. Stats., sees. 3940, 3941, 3942, 3943. Orders. 787 No, 1373. — Order — Property of Debtor to be Applied to Sat- isfy Judgment. [Title of Court and Cause.] It appearing from the examination of A. B., that he has in his possession one hundred tons of hay belonging to the said judg- ment debtor, and no part of said hay being exempt from execu- tion, and that said A. B. has no claim against, or Hen upon, said hay, except for its storage, it is ordered that he, the said A. B., immediately deliver said hay to the sheriff of said county to be ap- plied toward the satisfaction of the judgment in the above-en- titled action, upon the payment to him, the said A. B., of the sum of $2/.^o, his accrued charges for the storage of said hay up to the date of this order. NOTE.— California. C. C. P., sees. 717-721; Alaska, Codes, pt. 4, c. 31, sees. 714, 715; Arizona, C. C, pars. 2584-2591; Idaho, C. C. P., sees. 3562-356S; Montana, C. C. P., sees. 1260-1272; Nevada, Comp. Laws, sees. 3335-3342; New Mexico, Comp. Laws, sees. 3107, 3377; North Dakota, C. C. P., sec. 5566; Oregon, Codes and Statutes, sees. 254-258; South Dakota, C. C. P., sec. 98; Utah, Rev. Stats., sees. 3272-3281; Washington, Ballinger's Codes, sees. 5218, 5345; Wyoming, Rev. Stats., sees. 3941, 3950. No. 1374. — Order — Debtor of Judgment Debtor to be Exam- ined. [Title of Court and Cause.] State of California, County of Napa, — ss. On reading the foregoing aflfidavit, and it satisfactorily appear- ing to me therefrom that 0. P. S. is indebted to the defendant in the above-entitled action, and that this is a proper case for this order, now, on application of the plaintiff's attorney, it is hereby ordered that the said 0. P. S. personally be and appear before {stating before whom and the time and place], at ion o'clock in the forenoon of that day, to answer concerning his said indebted- ness, and that a copy of said affidavit and of this order be pre- viosuly served upon said defendant at least five days prior to said tenth day of June, ipo6 [or other time]. NOTE.— California, C. C P., seca. 714, 715; Alaska, Codes, pt. 4, c. 31, Bees. 295-298; Arizona, C. C, pars. 25S4-2591; Idaho, C. C. P., sees. 3562- 3568; Montana, C. C. P., sees. 1260-1272; Nevada, Comp. Laws, 3335-3342; New Mexico, Comp. Laws, sees. 3107, 3377 [garnishees]; North Dakot:^ C. C. P., sec. 5566; Oregon, Codes and Statutes, sees. 254, 258; South Dakota, C. C. P., see. 398; Utah, Rev. Stats., sec 3274; Washington, Ballinger's Codes, sees, 5312-5345. ^S8 New Book oi-' Forms. No. 1375. — Order — Deposition, Commission to Take, [Title of Court and Cause.] Upon reading and filing the affidavit of /. D., and upon the aies, papers, and records, in this action, and due proof of service of notice of motion having been made and filed, on motion of W. C. B., Esq., attorney for the plaintiff in said action, it is or- dered that a commission issue out of and under the seal of this court, directed to H. H., a person agreed upon by and between the parties, residing at the city of New York, in the state of New York, to take the testimony of W. C, residing at the same place, as a witness on behalf of the /'/aw/i^', w/'on such proper interroga- tories, direct and cross, as the respective parties may prepare to be settled, if the parties shall disagree as to their foryn, by the honorable judge of this court, on Wednesday, February 3, ipo6, at ten o'clock A. M., at the courtroom of this court. NOTE.— California, C. C. P., sec. 2024; Alaska, Codes, pt. 4, c. 64, sees. 642-658; Arizona, C. C, pars. 2506-2532; Idaho, C. C. P., sees. 4527-4.j29; Montana, C. C. P., sec. 3350; Nevada, Comp. Laws, sec. 3507; New Mexico Comp. Laws, sees. 3014-3067; North Dakota, C. C. P., sec. 8389; Oregon, Codes and Statutes, sees. 989, 990; South Dakota, C. C. P., sees. 514, 515-524; Utah, Rev. Stats., sees. 3450-3452; Washington, Ballinger a Codes, sees. 6017-6030. No. 1376. — Order — Deposition, Commission to Take. [Title of Court and Estate.] The People of the State of California, to /. B. : Know ye, that, trusting to your fidelity and circumspection, we have appointed you special commissioner, and do hereby au- thorize you to administer the necessary oaths, and take the depo- sitions of H. J., residing at Rochester, Genesee county, state of New York, or either of them, in answer to the interrogatories, di- rect and cross, annexed hereto, in the matter of the estate of D. B., Esq., deceased. All of which matter, together with this writ, you will return to this court, according to law, in a sealed envelope, directed to the clerk of said superior court, at the city of San Francisco, state of California, and forward the same, by mail or express, or other usual channel of conveyance. (All courts.) NOTE. — California, C. C. P., sec. 1024; Alaska, Codes, pt. 4, c. 62, sees. 642-658; Arizona, C. C, par. 2506-2532; Idaho, C. C. P., sees. 4527-4529; Montana, a C, P., sec. 3350; Nevada, Comp. Laws, see. 3507; New Mex- Ordicrs. 789 ieo, Comp. Laws, Bcea. 3014-30C7; North Dakota, C. C. P., sec. 8389; Oregon, Codes and Statntes, sees. 989, 990; South Dakota, C. C. P., »«■. 514, 515, 524; Utah, Rev. Stats., sees. 3450-3452; Washington Bulliuger's Codes, sees. G017-G030; Wyoming, Eev. Stats., sees. 3703-3729. No. 1377. — Order for Partial Distribution — Bond. [Title of Court and Estate.] It is ordered that the said E. D. and E. P., before receiving their interests, or any portion thereof, shall execute and deliver to the administrator of said estate, a bond in the penal sum of $5,000, to be approved by this court or judge, payable to the said administrator, and conditioned for the payment, whenever re- quired, of his proportion of the debts due from said estate, not ex- ceeding the value of the portion thereof to w^hich he or she is en- titled ; and that the said A. F., as said administrator, deliver to the said person so executing said bond his portion of said estate, as follows, to wit : To the said E. D., the following portion thereof: [Insert.] To the said E. F., the following portion thereof: [Insert.] The residue so distributed to said last named persons is de- scribed as follows, to wit: [Insert.] NOTE. — California, C. C. P., sec. 1661; Alaska, Codes, pt. 4, c. 85, sec. 880; Arizona, C. C, par. 18S9; Idaho, C. C. P., sec. 4273; Montana, C. C. P., sec. 2833; Nevada, Comp. Laws, sees. 299G-3000; New Mexico, Comp. Laws, sees. 1946, 2020; Oregon, Codes and Statutes, sees. 1223, 1224; Nort;h Dakota, Probate Code, sees. 6504-6508; South Dakota, Pro- bate Code, sees. 302-306; Utah. Rev. Stats., sec. 1901, p. 181; Washing- ton, Ballinger's Codes, sees. 6350-6353; Wyoming, Rev. Stats., sec 4829. No. 1378. — Order — Distribution — Partial. [Title of Court and Estate.] This case coming on regularly for hearing this tcrvth day of May, A. D. igo6, before the court, on the petition of /. B., brother and heir of said deceased, and due proof to the satisfaction of the court having been made of the service of the notice m such cases required, according to law, and no objection thereto having been made : Now, then, it is hereby ordered, adjudged, and decreed, that distribution of said estate be made, and that tlve administrator of said estate do transfer, set over, and deliver unto the said /. B. the property and funds belonging to the said estate, remaining in his hands or under his control, after pavment of the costs and ex- penses of administration on said estate, upon the execution and de- livery to him of a bond of indemnity in the penal sum of om 790 New Book of Forms. thousand dollars, payable to said administrator, with two suffi- cient sureties, to be approved by the judge of this court, condi- tioned that the said /. B. shall and will, whenever required, pay any (or his proportion of the) debt or debts, which may be found legallv due to any person or persons, from the said estate, the said applicant to pay the costs of this proceeding. NOTE.— California, C. C. P., sees. 1161, 1651, 1668; Alaska, Codes, pt. 4, c. 89, sees. 872-886; Arizona, C. C, par. 1883; Idaho, C. C. P., sec. 4267; Montana, C. C. P., see. 2818; Nevada, Comp. Laws, sec. 2988; New Mexico, Couip. Laws, sees. 199.5, 2027, 2028, 2033-2039; North Dakota, Probate Code, sees. 6404, 6516; Oregon, Codes and Statutes, see. 1220; South Dakota, Probate Code, sees. 302-306; Washington, Ballinger's Codes, see. 634L No. 1379. — Order — On Petition for Distribution. [Title of Court and Estate.] On reading and filing the petition of M. J., the administratrix of the estate of T. J., deceased, praying for an order of distribu- tion of the residue of said estate among the persons entitled, it is ordered that all persons interested in the estate of the said T. J., deceased, be and appear before the superior court of the city and county of San Francisco, at the courtroom of said court, in the City Hall, in said city and county on Monday, the nineteenth day of September, ipo6, at 11 o'clock A. M., then and there to show cause why an order of distribution should not be made of the residue of said estate among the heirs of the said deceased, ac- cording to law. It is further ordered, that a copy of this order be published once a zveck for four successive weeks, before the said nineteenth day of September, 1906, in the D. M. C, a newspaper printed and published in the said city and county. IsfOTE. — In California, order or decree is made on the petition of the executor or administrator, or of any person interested in the estate. Notice of the application must be given by posting or publication, as the court may direct, and for such time as may be ordered. If partition be applied for, as provided in this chapter, the decree of distribution shall not devest the court of jurisdiction to order partition, unless the estate is finally closed: Cal., C. C. P., sec. 1668; Alaska, Codes, pt. 4, c. 86, sees. 859-871; Arizona. C. C, par. 1899; Idaho, C. C. P., sec. 4278; Montana, C C P' sec. 2846; Nevada, Comp. Laws, sec. 3003; New Mexico, Comp. Laws sees. 1995, 2027, 2028, 2033, 2039; North Dakota, Probate Code, sees. 6404-6516; South Dakota, Probate Code, sees. 307-323; Utah, Eev. Stats, see, 3945; Washington, Ballinger's Codes, sec, 6337. Orders. 791 No. 1380. — Order Appointing Agent to Take Possession of Real Estate for Benefit of Nonresident Distributee, [Title of Court and Estate.] Whereas, it appearing to the court from the records of this court and the papers on file in this case and from the testimony given before the court upon the settlement of the final account of the administrator that A. B. is an heir at law of the said C. D., deceased, and that he is nonresident of the state of California, and his habitation, and also his residence being unknown, and all the real estate situated in the county of Butte, State of Cali- fornia, described as follows, to wit [description], was by decree of final distribution assigned to said A. B., and said decree of distribution having, on the jJ day of June, ipo6, been recorded in the office of the county recorder in book p6 of Deeds, at pages jp<5, 7, 8; and Whereas, it appearing to the court that said real estate is a United States patent for a quarts mine; and it also appearing that to protect said mine and preserve the mills and other work on it that it is necessary to appoint an agent to take charge of said real estate and improvements for the benefit of A. B , said absent person, and to act for him in respect to said distribution : It is ordered that E. F. G. be, and he is hereby, appointed agent to take possession and charge of the property hereinabove de- scribed for the benefit of said A. B. and to act for him in respect to said distribution upon said agent's execution of a bond to the state of California in the sum of $20,000, to be approved by this court, for the faithful management and account for the said es- tate and as agent for the said A. B. NOTE. — California, C. C. P., sec. 1691. It has not been overlooked that it is unnecessary to recite the facts, in orders of this class, to giy^e a court authority to make them; but it is the practice to do so when the matter involved relates to real estate and otherwise is of considerable importance: Id., sec. 1704; Arizona, C. C, par. 1918-1925; Idaho, C. C, P., sees. 4293-4304; Montana, C. C. P., sees. 2280, 2910; Nevada. Comp. Laws, sec. 3032; North Dakota, Probate Code, sec. 6524; South Dakota, Probate Code. sees. 324-331; Utah. Rev. Stats., sees. 3970, 4039; Wash- ington, Ballinger'3 Codes, sec. 6371; Wyoming, Rev. Stats., sec. 4852. No. 1 38 1. — Order — Disincorporation — Notice to be Given. [Title of Court and Cause.] On reading the petition of the M. G. Company for disincorpo- ration of said company, and praying, among other tilings, tliat a 792 New Book o^ Forms time and place be fixed for the hearing of said petition, and that the clerk of this court be directed to publish notice thereof and of the nature of said application, now, on the motion of W. H. L. attorney for said petitioners, it is ordered said petition be filed with the clerk of this court, and that Friday, the tzvelfth day of September, igo6, at the opening of the court on that day, or as soon thereafter as counsel can be heard, at the courtroom of this court, in the City Hall of the city and county of San Francisco, state of California, be, and the same are hereby fixed as the time and place for the hearing of said petition, and the clerk is di- rected to cause publication thereof, and of the nature of the appli- cation in said petition made, to be published not less than thirty nor more than fifty days preceding said date, in the D. B. B., a newspaper published in said city and county. XOTE.— California, C. C. P., sec. 1230; Idaho, C. C. P., sees. 3834- 3840; Montana, C. C. P., sees. 2190-2196; Nevada, Comp. Laws, sec. 887; New Mexico, Comp. Laws, sec. 435; North Dakota, C. C. P., sees. 5762- 5766; OreP-on, Codes and Statutes, sec. 5070; South Dakota, C. C, sec. 446; UtahT Rev. Stats., sees. 3661-3667; Washington, Ballinger's Codes, Bee. 4275; Wyoming, Eev. Stats., sees. 3255-3264. No. 1382. — Order Directing Citation to Banker et aL in Pro- ceedings to Recover Unclaimed Deposits. [Title of Court and Estate.] Upon reading and filing the petition of W. A., administrator of the estate of the above-named decedent, and it satisfactorily appearing therefrom that the C. S. and L. Society, doing business and having its office and principal place of business in the city and county of San Francisco, state of California, has in its pos- session, and under its custody and control, a deposit of $1,251.46, or thereabouts, and also certain books and registers showing thr? identity of the depositor of said sum with the above-named A. A., deceased, and the fact that the said sum, or any amount due on account of said deposit, is the property of said deceased, which property the said C. S. and L. Society has hitherto refused, and still refuses, to deliver to said administrator, and which books and registers it has hitherto disallowed and still disallows said admin- istrator to inspect or examine for the purpose of establishing said identity ; and it further appearing that the full baptismal name of said deceased was A. M. A., although she frequently called her- self and was known as A. A.: It is ordered that a citation issue out of this court, directed to said C. S. and L. Society, requiring the said society, its presi- Orders. 793 'VJcnt, secretary, cashier, treasurer or other officer having the con- trol and custody of any books or registers of said society con- taining any entries in reference to A., A. M., or A. M. A., to ap- pear before this court, in the courtroom of department No. 2 thereof, at 9:45 o'clock A. M. oi Tuesday, the 21st day of Febru- ary, 19OS, with the aforesaid books and registers or papers of any kind cc«itaining such entry or entries, then and there to be examined on oath touching the matters of said petition and to show cause, if any there be, why an order of this court should not be made herein directing the said C. S. and L. Society to pay over and deliver to said W. A., as administrator of the estate of A. A., deceased, the sum of $1,251.46, or such other sum as may be found to be due from said C. S. and L. Society on account of said deposit to said W. A., as administrator of the estate of said decedent. NOTE.— California, C. C. P., sec. 1461; Alaska, Codes, pt. 4, c. 82, sec. 810; Arizona, C, a, par. 1724; Idaho, C. C. P., sec. 4118; Montana, C. C. P., sec. 2537; Nevada, Comp. Laws, sec. 2884; North Dakota, Pro- bate Code, sec. 6379; Oregon, Codes and Statutes, sec. 1151; South Da- kota, Probate Code, sees. 149-152; Washington, Ballinger's Codes, sec. 6214; WToming, Eev. Stats., sec. 4693. r No. 1383. — Order — Citation to Issue — Inheritance Tax. [Title of Court and Estate.] It appearing to this court that there is certain property be- longing to the above-entitled estate, subject to the tax imposed by the laws of this state, and upon which an inheritance tax is due and has not been paid, it is ordered, that a citation issue to A. B., executor of the will of S. D., deceased, to appear before this court, on the jc? day of June, A. D. 1905, at 10 o'clock A. M. of said day, in the courtroom of tliis court, and show cause why the said tax should not be paid. NOTE.— Act of March 20, 1905; Stats., p. 341, sees. 17, 20. No. 1384. — Order to Show Cause Why Punishment for Con- tempt Should not be Inflicted. [Title of Court and Cause.] On reading and filing the affidavit of 7. B., charging D. B. with contempt of this court, and sufficient cause appearing there- for, it is ordered that the said D. E. be and appear before this court in open court at the courtroom thereof, on Monday, May 12, 1905, at ten o'clock A. M., to show cause why he should not 794 New Book of Forms. be punished for contempt as in said affidavit alleged. It is or- dered that a copy of said affidavit, and of this order, be served on the said D. E. at least Hve days before said twelfth day of May* Witness, etc. NOTE.— California, C. C. P., sec. 1212. No. 1385.— Order — Juror, Defaulting — Contempt, in. [Title of Court and Cause.] The People of the State of California to H. J., Greeting : You are hereby commanded to be and appear before the su- perior court of the county of San Mateo, state of California, at the courtroom of said court, in the courthouse, on Monday, the twenty-fifth day of January, ipo6, at ten o'clock A. M., then and there to show cause why you should not be punished for con- tempt in failing to attend the said court as a juror. (All courts.) NOTK — California, C. C. P., sec. 238 (see Contempt of Court). No. 1386. — Order — Contempt — Cause to Show in Defense, [Title of Court and Cause.] On reading and filing the affidavit of G. B., charging H. S. with contempt of this court, and sufficient cause appearing there- for, it is ordered that the said H. S. be and appear before me, at the courthouse in Downieville, in said county, on Monday, May 12, igo6, at ten o'clock A. M., to shozv cause why he should not be punished as for contempt, as in said affidavit alleged. It is ordered that a copy of said affidavit, and of this order, be served on the said H. S. at least five days before the said twelfth day of May, IQ06. NOTES. — California, C. C. P., sec. 1212; Alaska, Codes, pt. 4, c. 58, sees. 609-623; Arizona, C. C, pars. 1430, 1723, 1724, 2760, 2761; Idaho, C. C. P., sees. 2173, 3819; Montana, C. C. P., sec. 2170; Nevada, Comp. Laws, sees. 3.555, 3556, 3669; New Mexico, Comp. Laws, sees. 2685, sub- sees. 121, 146, 151; North Dakota, C. C. P., sec. 5939; Oregon, Codes and Statutes, sec. 665; Utah, Rev. Stats., sees. 3361, 3362; Washington, Ballinger's Codes, sees. 5800-5811; Wyoming, Eev, Stats., sees. 3694, 3696, 3850, 3949, 4016, 4060, 4072, 4474, 4500, 4536. *It should be served on the defendant personally, but in the ease of a corporation it may be made on its attorney in the ease, if the officers of the corporation conceal themselves to avoid service (E. L. & U. C. Co. v. Superior Court, 66 Cal. 311, 5 Pac 490), or as is provided for the service of summons: Golden Gate G. H. M. Co. v. Superior Court, 65 CaL 188, 3 Pac. 628. Orders. 795 No. 1387.— Order — "Contempt" in View of Judge — Reciting Facts. [Title of Court and Cause.] Whereas, during the trial of the above-entitled action in this court, at Doivnieinlle, Sierra county, state of California, on the third day of January, ipo6, before the undersigned, a judge of said superior court, H. S., a witness, was under examination on the part of plaintiflf, and while said witness was giving his evi- dence, F. A., Esq., the attorney for defendant, objected to the testimony then being given by said witness, on the ground that said witness was stating facts not within his own knowledge, the same being hearsay, ivhich objection the court sustained; where- upon, S. D., Esq., the attorney for plaintiff, shook his finger at the undersigned, and, zvith a low bow, stated, in a sneering man- ner, that the undersigned evidently knew more law than Black- stone, and that the bar of the state of California would take it kindly if the undersigned would condescendingly write a treatise on evidence; for which conduct I then and there, and do now, adjudge the said S. D. guilty of contempt, and I order him to pay a fine of $500, and to be imprisoned one day in the county jail of said county of Sierra. NOTE.— California, C. C. P., sec. 1211; Alaska, Codes, pt. 4, e. 58, see. 609; Arizona, C. C, pars. 1430, 1723, 1724, 2760, 7261; Idaho, C. C. P., sees. 3819, 3821; Montana, C. C. P., see. 2172; Nevada, Comp. Laws, sees. 3.556-3670; New Mexico, Comp. Laws, sec. 26So; subsccs. 121, 146, 151; North Dakota, C. C. P., sec. 5935; Oregon, Codes and Statutes, sec. 664; Utah, Be v. Stats^ sec, 3360; Washington, Ballinger's Codes, sec 5800. No. 1388. — Order — Contempt — Conviction of. [Title of Court and Cause.] Whereas [after reciting the facts, as in the affidavit and order for examination, and the affidavit charging disobedience^ of the order] , and that an examination of the charge was made in pres- ence of the accused; it is therefore ordered that the said H. S. be, and he is, adjudged guilty of contempt, in disobeying the law- ful order of this court, as aforesaid (having the power to obey said order), and it is adjudged that the said H. S. be imprisoned in the county jail of said county of Sierra until he complies with such order. (All courts.) NOTE. — California, C. C. P., sec 1219; Alaska, Codes, pt. 4, e. 58, sees. 609-623; Arizona, C. C, pars. 1430, 1723, 1724, 2760, 2761; Idaho. C. C. P., sees. 3819, 3821; Montana, C. a P., sec 2172; Nevada, Comp. Laws, ^96 New Book oe Forms. Bees. 3556, 3670, 3S65, 3866; New Mexico, Comp. Laws, sec. 2685; sub- 8e«8. 121, 146, 157; North Dakota, C. C. P., see. 5935; Oregon, Codes and Statutes, see. 64; Utah, Rev. Stats., sec. 3360; Washington, Ballinger's Codes, sees. 5800-5811. No. 1389. — Order — Conviction of Contempt. [Title of Court and Cause.] Whereas [recite the facts as stated in form No. 1388 and the disobedience of the order], and that an order to show cause why said D. E. should not be punished for said alleged contempt, and the said D. E. having appeared in response to said order and an examination of the charge was made in presence of the accused ; it is therefore ordered that the said D. E. be, and he is adjudged guilty of contempt in disobeying the lawful order of this court as aforesaid (he having the power to obey said order), and it is adjudged that the said D. E. be imprisoned in the county jail of said city and coxmty for the period of five days* NOTE.— California, C. C. P., see. 1218. No. 1390. — Order — Contempt, Purged of. [Title of Court and Cause.] In the Matter of Proceedings Against H. C, for Contempt. The said H. C. having this day purged himself of the charge of contempt, preferred against him by /. B., constable, it is or- *In California, it appears to be settled that appeal does not lie. In Ware v. Robinson, 9 Cal. 110, it was held generally, without qualification, that appeal lay. In People v. O'Neil, 47 Cal. 109, it was held that appeal lay in cases where the court below exceeded its jurisdiction, and there are facts outside of the record which can only be brought up by a statement on appeaL In Larrabee v. Selby, 52 Cal. 507, the court held that appeal would not lie. In Huerstal v. Muir, 62 Cal. 479, it was held that appeal will not lie in cases not within People v. O 'Neil, 47 Cal. 109. In Tyler v. Connolly, 65 Cal. 30, 2 Pac. 414, it Is said that People V. O'Neil was Arrongly decided, and appeal does not lie in any case: Teller v. People, 7 Colo. 451, 4 Pac. 48. Prior to Teller v. People, 7 Colo. 451, 4 Pac. 48, up to the latest California case, no reason has been given why appeal does not lie for such judgments. Those eases appear to have settled the law, but no reason has, nor probably ever will be, given why appeal ought not to be allowed. In People v. Kuhlman, 118 Cal. 140, 50 Pac. 382, it is said that "as a general rule, the judg- ment and orders of a court or judge, made in cases of contempt, are final and conclusive," which is a sign of some doubt about the sound- ness of the absence of reasoning in the early cases. In Ex parte Clarke, 126 Cal. 235, 77 Am. St. Rep. 176, 58 Pac. 546, 46 L. R. A. 835, it is said that when a court has made "an unlawful" order, habeas corpus may be used to correct the error. Orders. 797 dercd that the said H. C. be, and he is, acquitted of said chaige and he is hereby discharged from arrest. (All courts.) ' NOTE. — When the person charged 8how8 that he is not guilty, or ad- mits the thiug chargt/d, but stiuws that he had a right to do the act complaiutd of, or that he acted under irresistible compulsion, or was not in his right mind, he is said to have purged himself of the charge, upon the same theory that a physic evacuates the bowels, when every court knoweth that sometimes it doth not. No. 1391. — Order Directing Attachment Against Administra- tor for not Rendering Account — Contempt. [Title of Court and Estate.] It appearing to the court that C. D., the administrator of the estate of H. f., deceased, has neglected to render an exhibit within thirty days after the expiration of the time mentioned in the notice to the creditors of said estate, and a citation having been issued requiring said C. D. to appear and show cause why an at- tachment shall not issue to compel him to render said account, and the said C. D. has failed to appear and render said account or show cause why attachment should not issue as directed in said citation, and the citation having been served and returned in the manner and form as is by law provided, it is ordered that a war- rant of attachment issue, and that said C. B. be arrested and brought before this court to show cause why he should not be committed for contempt of court for not obeying said citation. NOTE. — ^In such cases a citation must be first issued, served and re- turned requiring rhc person to appear and show cause why a warrant cf attachment should not issue: Cal. C. C. P., sees. 1627, 1628; Alaska, Codes, pt. 4, c. 58, see. 609; Arizona, C. C, pars. 1859, 1860; Idaho, 0. C. P., sees. 4247, 4248; Montana, C. C. P., sees. 2786, 2789; Nevada, Comp. Laws, sec. 2976; North Dakota, Probate Code, sees. 6362-6371; Oregon, Codes and Statutes, sees. 1200, 1201, 1203; South Dakota, Pro- bate Code, sees. 272-290; Washington, Ballinger's Codes, sees 6320 6321; Wyoming, Eev. Stats,, sees. 4717, 4718. ' No. 1392. — Order Committing Administrator for Contempt for Disobeying Order of Court. [Title of Court and Estate.] An order having been made by this court that C. D., admin- istrator of the estate of E. F., deceased, render the account of said estate required to be rendered within thirty days after the ex- piration of the time mentioned in the notice to the creditors of -c)8 New Book of Forms. said estate within which claims must be exhibited, and said time having- elapsed before said order was made; and the said C. D. having failed to render said account as ordered by the court; and the said C. D. having been cited to appear and show cause uli^- a warrant of attachment should not issue to compel him to render said account (the said citation having been issued; served and returned as is by law required), and the said C. D. brought mto court, who then and there refused to render said account, it is ordered that said C. D. be, and he is hereby, adjudged to be in contempt of this court, and that he be committed to the cus- tody of the sheriff of the county of Butte until he obeys the said order of this court, NOTE. — Whenever an executor or administrator or guardian is com- mitted for contempt in disobeying any lawful order of the court, or a judge thereof, and he remains in custody for thirty days without obey- ing such order, etc., the court may by order ' ' reciting the facts ' ' re- voke his letters and appoint (by the same orders) some other person entitled thereto in his stead: Cal. C. C. P., sees. 1627, 1628, 1630 and 1721, as to revoking letters; Alaska, Codes, pt. 4, c. 58, sees. 609-623; Arizona, C. C, pars. 18-59, 1860; Idaho, C. C. P., sees. 4247, 4248; Mon- tana, C. C. P., sees. 2786, 2789; Nevada, Comp. Laws, sec. 2970; North Dakota, Probate Code, sees. 6362-6371; South Dakota, Probate Code, sees. 272-290; Washington, Ballinger's Codes, sees. 6320, 6321; Oregon, Codes and Statutes, sees. 1200, 1203, 1210; Wyoming, Eev. Stats., sees. 4717, 4718. No. 1393. — Order Revoking Letters After Commitment for Contem.pt. [Title of Court and Estate.] Be it known that on June j, 1906, C. D., the executor of the will of £. F., deceased, was ordered by this court to file an ac- count of his administration within ten days from May 20, 1906, which order was not obeyed ; whereupon the said C. D. was cited to answer for contempt of this court because of said disobedience and after a full hearing he was committed to the custody of the sheriff of said county until he obeyed said order, and has re- mained in said custody for thirty days without obeying said order, or purging himself otherwise of contempt ; now, for the reasons aforesaid, the letters issued to him, the said C. D., as executor as aforesaid, are hereby revoked. > • NOTE. — In such cases an executor, administrator or guardian may be removed for disobeying the order of a court or a judge. The order must recite the facts: Cal. C. C. P., sec. 1721; Arizona, "c. C. P., par. 1940; Idaho, C. C. P., sec. 4322; Montana, C. C. P., sec. 2928; North Dakota, Probate Code, sees. 6362-6071; iaouth Dakota, Probate Code, gee. 343; Utah, Rev. Stats., sec. 384a Orders. 79) No. 1394. — Order Appointing Executor in Place of Executor Removed, Because of Contempt of Court. [Title of Court and Estate.] [The same as in No. 1393 to the end; then continue:] And C. L. M. is hereby appointed administrator of the will of said deceased in place of the said C. D., and the clerk of this court is ordered to issue said letters upon his, the said C. L. M., filing a bond as by lazv required in the sum of $20,000, to he approved by the judge of this court. NOTE. — The court has power to include in its order of revoking let- ters an order appointing a person to the trust reposed in the person removed: Cal. C. C. P., sec. 1721; Arizona, C. C. P.. par. 1940; Idaho, C, C. P., sec. 4322; Montana, C. C. P., see. 292S; North Dakota, Probate Code, sees. 6362-6371; South Dakota, Probate Code, sec. 343; Utah, Bev. Stats., sec. 3840. No. 1395. — Order — Creditors, Notice to — Publication of. [Title of Court and Estate.] It is ordered that notice to the creditors of T. J., deceased, re- quiring all persons having claims against the said deceased to exhibit them, with the necessary vouchers, to the administratrix of the estate of said deceased, be given by said administratrix by publication in the D. E. B., a newspaper printed and published in the city and county of San Francisco, at least once a week for four weeks. NOTE.— California, C. C. P., sec. 1490; Alaska, Codes, pt. 4. c. 84, sees. 820-829; Arizona, C. C, par. 1739; Idaho, C. C. P., see. 4133; Montana, C. C. P., sec. 2600; Nevada, Comp. Laws, sec. 2S92; New Mexico, Comp. Laws, sec. 1967; North Dakota, Probate Code, sees. 6399-6418; Oregon, Codes and Statutes, sec. 1158; South Dakota, Pro- bate Code, sec. 167; Utah, Kev. Stats., sec. 3848; Washington, Ballinger's Codes, sec. 6226; Wyoming, Eev. Stats., sec. 4747. No. 1396. — Order — Creditors, Notice to. [Title of Court and Estate.] It is ordered that notice to the creditors of said decedent, pur- suant to section 1490 of the Code of Civil Procedure, be pub- lished once a week for ei^ht weeks. 'ii' NOTE. — In California, the executor or administrator must, imme- diately after his appointment, publish in some newspaper of the county, 8oo New Book of Forms. if there b« one, if not, then in snch newspaper as may be designated by the court, a notice to the creditors of the decedent, requiring them to exhibit their claims with the necessary vouchers, to the giver of the notice at the place of his residence or business, to be specified in the notice; such notice must be published as often as the judge or court shall direct, but not less than once a week for four weeks. [The court or judge may also direct additional notice by publication or posting. In case such executor or administrator resigns, or is removed, before the time expressed in the notice, hia successor, must give notice only for the unexpired time allowed for such presentation.] Cal. C. C. P., sec. 1490. No. 1397. — Order — Creditor's Claim — Allowing Payment. [Title of Court and Estate.] It appearing to the court that /. S. had no notice of the death of said deceased, or of the order of publication of notice to cred- itors, or of publication of notice to creditors herein until after the time had expired to present claims [zuitli an exception, if any], and the decree of distribution in said estate not having been entered, it is ordered that the said claim may be presented to the executor of said estate with the same effect as if it had been presented before the time had expired for the presentation of claims. NOTE. — ^In California all claims arising upon contracts, whether the same be due, not due, or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever; provided, however, that when it is made to appear by the affidavit of the claimant, to the satisfaction of the court, or a judge thereof, that the claimant had no notice [of the time in which to present his claim] by reason of being out of the state, it may be presented at any time before a decree of distribution is entered: Cal. C. C. P., sec. 1493; Alaska, Codes, pt. 4, c. 84, sees. 820-829; Arizona, C. C, par. 1742; Idaho, C. C. P., sec. 4136; Montana, C. C. P., sec. 2603; Nevada, Comp. Laws, sec. 2893; North Dakota, Probate Code, sees. 6399-6418; Oregon, Codes and Statutes, sec. 1159; South Dakota, Probate Code, sees. 167-178; Utah, Eev. btats., see. 3851; Washington, Ballinger's Codes, see. 6228; Wyo- ming, Eev. Stats., sec. 4797. No. 1398. — Order for the Payment of Debts. [Title of Court and Estate.] It appearing from the settlement of the administrator's ac- count filed within thirty days after the expiration of the time for the presentation of claims that the entire property of the estate has been sold and the net proceeds, amounting to $10,824.50, are in his possession, which amount, together with other money, to wit, $8,842, in his possession as stated in said account amounts Orders. 8oi to $1^,648.50; it also appearing that the debts of the estate amount to $^2,816, and the entire expenses of administration taxes amount to $1,822.50. It is ordered that the said $1,822.50, be deducted from said $19,648.50, and the $17,826 remaining be paid to said creditors as follows: [Distributing the amount so that each creditor will receive his proportion.] NOTE. — Under the circumstances related the estate is exhausted and each creditor receives his proportion; and the court must sp'S that upon revocation, letters of administration with the will annexed be issued to petitioner. Verified. NOTE.— California, C. C. P., sees. 1436-1440; Alaska, Codes, pt. 4, e. 81, s^c. 784; Arizona, C. C, par. 1705; Idaho, C. C. P., sec. 4099; Mon- tana, C. C. P., sec. 2540; Nevada. Comp. Laws, sec. 3026; New Mexico, Comp. Laws, sees. 1935, 2094; North Dakota, Probate Code, sees. 6362, 6371; South Dakota. Probate Code, ser-s. 133, 134; Washington, Ballin- ger's Codes, sec. 6167; Wyoming, Bev. Stats., sec. 4622. No. 1475. — Petition to Revoke Letters and Appoint Petitioner — Elxecutor is Nonresident and was When Appointed. [Title of Court and Estate.] [The same as in No. 1474, except omit the following: "That on August 10, 1905, said C. D. removed from the state of Califor- nia and has not since returned, and has permanently removed therefrom, and he is now a resident of Rochester, Monroe County, state of New York"; and insert: "TJiat said C. D. was never a resident of the state of California, hut was at the time of his appointment as aforesaid, and is nozv. a resident of Rochester, , Monroe County, state of New York."] I The petitioner is, etc. NOTE.— California, C. C. P., sec. 1349. The phrase "permanently removed from the state" as a gronnd for revoking letters of an executor applies to a resident executor perma- nently removed from the state, and it also applies to a nonresident executor who has come to the state to receive his appointment, and then leaves the state and permanently remains away: Estate of Kelley, 122 Cal. 379; Alaska, Codes, pt. 4, c." 81, sec.' 784; Arizona, C. C, par. 1707; Idaho. C. C. P., 4101; Montana, C. C. P., sec. 3542; Nevada. Comp. Laws, sec. 3029; New Mexico. Comp. Laws, sees. 1935-2094; North Dakota, Probate Code. sees. 6362. 6371; South Dakota. Probate Code, sees. 133,' 134; Washington, Ballinger's Codes, sec. 6169; Wyoming, Eev. Stats., sec' 4624. No. IA76. — Petition and Comnlaint A'^T-ing^ for a Citation to Shov^' Cause Why a Bank Should not Pay a Deposit to Administrator of Depositor. [Title of Court and Estate.] The petition of JV. A. respectfully shows: I. That on the yth day of March, igo2, your petitioner. W. A., was appointed administrator of the above-named estate; that 848 New Book of Forms. thereafter, and on the ^th day of May, 1902, he qualified as such administrator, ever since has been and now is the duly appointed, quahhed and acting administrator of said estate. II. That some years prior to the death of decedent, the exact date being to your petitioner unknown, said deceased deposited with the C. S. and L. Society, a corporation, at its principal place of business in said county, the sum of twelve hundred and fifty-one and 46-100 dollars ($12^,1.46), gold coin of the United States, which sum said corporation then and there promised and agreed to repay to said deceased, with the interest or dividends accrued thereon, upon demand. III. That your petitioner shortly after the issuance of letters of ad- ministration to him upon the estate of said A. A., deceased, as such administrator demanded of said C. S. and L. Society, at its office in said city and county of San Francisco, state aforesaid, the pay- ment to him, as such administrator, of said sum of $12^1.46, but said corporation Jien and there refused, ever since has refused, and now refuses to pay to said administrator said sum or any part thereof. IV. That said corporation did not pay said sum, or any part thereof, to said A. A., during her lifetime, or to anyone else, nor has it paid said sum, or any part thereof, to said administrator, though often requested so to do, and said sum and the whole thereof is long past due, owing and unpaid to your petitioner, as adminis- trator of the said estate. V. That the aforesaid refusal of the corporation to pay said de- posit to said administrator is based upon the pretended noniden- tity of the said deceased, with the depositor of the aforesaid sum of money, but that the said corporation, according to the informa- tion and belief of this petitioner, has certain books and registers, to wit, its regular books containing entries of the names, signa- tures, birthplaces, parents' names and other or similar marks of identification of its depositors, tending to disclose the identity of said depositor with the said deceased ; and that the said cor- poration and the officers thereof have hitherto refused, and still refuse, leave to this petitioner as the administrator of said es- tate to examine or inspect said books and registers, or the respec- tive entries referring to said deceased's estate, for the purpose of establishing said identity and the fact that the money deposited by said deceased in said savings bank is the property of the estate of said deceased. Petition. 849 VI. That an application for an order requiring the said corporation to pay the above-mentioned deposit, or any sum due on account thereof, to this petitioner as administrator of the estate of said A. A., deceased, was heretofore presented to the court, hut was de- nied on the ground that the identity of said deceased zvith said depositor had not been sufficiently established. That since then certain documentary evidence, not previously obtainable, relating to the date and place of the birth of said deceased and to the maiden name of her mother, has been received by this petitioner, whereby, as petitioner is informed and believes, in connection imth the said entries in said bank-books and registers, the said identity can be clearly shoivn. Wherefore your petitioner prays that a citation issue herein to said C. S. and L. Society requiring it to appear therein at a time and place to be appointed by this court, then and there to show cause why an order of this court should not be made and entered herein, directing it to pay to said W. A., as administrator of the estate of A. A., deceased, said sum of $12^1.46, or such other sum as may be found to be due, owing and unpaid by said corporation to said W. A., as said administrator; and also requiring said cor- poration and the president, secretary, cashier and treasurer there- of, or either of said or any officers having control of the books and registers of said bank mentioned in this petition, to appear be- fore the above-entitled court with such of the aforesaid books and registers as contain entries referring to sa.id depositor, A. A., and then and there to be examined on oath upon the matter of this l>etition. NOTE. — Undpr the law of March 26, 1905, banks and others receiv- ing deposits must publish the name, etc., of all depositors who have made an addition to their deposit or drawn any part thereof within ten years: Stats. 1905, p. 77. In such cases proceedings are commenced under the provision of Code of Civil Procedure, sections 1458-1461; Arizona, C. C^ par. 1721 ; Idaho, C. C. P., sec. 4115; Montana, C. C. P., sec. 2576; Nevada, Comp. Laws, sec. 2881; New Mexico, Comp. Laws, sees. 19.35-2094; North Dakota, Probate Code, sec. 6581; Oregon, Codes and Statutes, see. 1152; South Dnkota, Probate Code, sees. 149-152; Ftah. Rev. Stats., sec. .1926; Washington, Ballinger's Codes, sec. 6211; Wyoming, Rev. Stats., pec. 4689. Under Code of Civil Procedure, 1459, a person having in his pos- session bonks or papers containing evidence tending to show the title or interest of decedent to property may be required to produce such books or papers and be examined concerning them: Levy v. Superior i95 4^ And making, zvith the said sum of 1,500 00 And /^7 00 And 1,130 00 The sum of $3,97^ 4^ That no moneys of said estate have come to the hands of your petitioner, except the sum of fifty dollars. That said intestate died possessed of personal property, particu- larly described in the inventory and appraisement heretofore re- turned to said court, and appraised at the sum of $4,850 (exclu- sive of the household furniture heretofore set apart for tlie use of said family), as zvill appear by said inventory and appraisement, which your petitioner begs leave to make a part of this petition, and that said property is nozv of the value of about $4,000 only. That, therefore, a sale of the- zvhole, or some portion of said personal property, is necessary for the payment of said claim, ex- penses of administration, and allozvance to the family. Wherefore your petitioner prays that, after notice given of the hearing of this application, said court order a sale of the zvhole or so much of the said personal property as shall be necessary for the payment of said claim, expenses of administration, and allozv- ance to the family of said deceased, or that such other or further order may be made as is meet in the premises. And your petitioner will ever pray. Petition, 859 NOTE. — In California, the executor, administrator, or special admin- istrator may apply to the court or judge for an order to sell perishable and other jiersonal property likely to depreciate in value, or which will incur loss or expense by being kept, and so much other personal prop- erty as may be necessary to pay the allowance made to the family of the decedent. The order for the sale may be made without notice; but the executor, administrator, or special administrator is responsible for the property, unless, after making a sworn return, and on a proper showing, the court shall approve the sale Cal. C. C. P., sees. 1522, 1523 [see Or- der to Sell Personal Property]; Alaska, Codes, pt. 4. c. 85, sec. 830; Arizona, C. C, par. 1767; Idaho, C. C. P., sec. 4161; Montana, C. C. P., sec. 2650; Nevada. Comp. Laws, sec. 2911; New Mexico, Comp. Laws, sees. 1935, 2094; North Dakota. Probate Code, sees. 6428-6434; South Da- kota, Probate Code, sees. 231-239; Utah, Rev. Stats., sec. 3885; Washing- ton, Ballinger's Codes, sec 6252; Wyoming, Bev. Stats., sec. 4772. No. 1484.— Petition by Administrator to Sell Stock in Mining Company. [Title of Court and Estate.] The petition oi A. B. states that he is the administrator of the above-entitled estate, which is now in due course of adminis- tration. That among the assets of said estate are 3,000 shares of the B. R. G. Mining Company, a California corporation. That the said mine is a quartz deposit on Nelson creek in the county of Plumas, California. The number of shares in said company is 100,000. That said mine is a prospecting venture, and all the expenses are paid out of assessments levied as provided by law. That an assement (No. 18'^) is now in process of collec- tion. That said assessment is ten cents upon each share of said $100,000. That the condition of said mine, as petitioner is in- formed and believes, is as follows : The quartz lead or deposit is about 6 feet wide and :;,ooo feet long, containing in places gold- bearing quartz that will mill about $1,300 a ton, on the surface wherever it is probable that those in search of a good mine for an investment would be apt to prospect, but such values have not been discovered elsewhere. Work has been continued during six years and the working shaft is down yd? feet, but enough quartz has not been discovered to warrant the erection of a mill to re- duce the ore. There is an abundance of water in the mine con- taining a large percentage of sulphur, which sulphur may be easily evaporated and become a source of more or less profit if the gold in the quartz should entirely disappear, and also there is an unlimited amount of unusually hard slate rock between de- posits of granite, but the gold-bearing quartz appears to be dimin- ishing in value, recent developments showing a large amount of quartz averaging about $1.30 a ton, which, in the opinion of ex- perts, is a favorable indication of an indefinite number of regu- lar assessments in the near future. Because of the foregoing de- 86o New Book op Forms. velopments, petitioner prays for an order authorizing him to sell all said shares, and he believes it is for the best interests of the estate that said stock be sold, because the estate would be relieved of the burden of paying assessments on said stock, and a better price may be obtained for said stock at the present time than in the near future when the condition and value of said mine be- comes better known. NOTE. — California, C. C. P., sees. 1 529-1533, • also Id., sees. 1536-1576; Alaska, Codes, pt. 4, e. 85, sec. 830; Arizoua, CC, pars. 1772, 1773, 2013; Idaho, C. C. P., sees. 4166, 4167; Montana, C. C. P., sees. 2660, 2;j61; New Mexico, Comp. Laws, sees. 1935, 2094; North Dakota, Probate Code, sees. 642S-6434; South Dakota, Probate Code, sees. 196-200; Wyoming, Bev. Stats., sec. 4777. No. 1485.— Petition for Order of Sale of Real Estate— All, Persons Interested Join in Petition. [Title of Court and Estate.] [The same as in a petition of executor or administrator, except commence as follows:] The undersigned, the executor of the last will of A. B., de- ceased, and all persons interested in the estate of the said A. B., deceased, respectfully show: [Then continue as in a petition by an executor or administrator and after the signature of the executor and after each signature write, if a creditor of the estate, the word "creditor" ; if a guardian, legatee, devisee, or heir, a similar description of the class to which the person belongs, and verify in the same manner.] [See form No. i486.] NOTE. — In a large majority of estates the above form will be ap- plicable. If all persons interested join in the petition or signify in writing their assent to a sale, "fTie notice may he dispensed ivitJi and the hearing had" on the same day: Cal. C. C. P., sec. 1539; Alaska, Codes, pt. 4, c. 85, sees. 830-835; Arizona, C. C, par. 1780; Idaho, C. C. P., sec. 4174; Montana, C. C. P., sec. 2673; Nevada, Comp. Laws, sec. 2917; New Mexico, Comp. Laws, sees. 1935, 2094; North Dakota, Probate Code, sees. C428-6442; Oregon, Codes and Statutes, sec. 1175: South Dakota, Probate Code, sees. 201-239; Wyoming, Eev. Stats., sec. 4784. No. i486.— Petition for Order of Sale of Real Estate— All Per- sons Interested Assent in Writing, [Title of Court and Estate.] [The same as in a petition by executor or administrator. Omit all about publication of notice and conclude as follozvs:] PETITION. 86l That all persons interested in said estate have signified their assent to said sale, and their assent is now on file in this court, and a copy thereof is herein referred to and made a part of this petition, and marked Exhibit "A." Wherefore petitioner prays that notice of said sale may be dis- pensed with, and that a sale may be had within the shortest lime the court will fix. That such sale is a matter of urgency, a pur- chaser having been found who will pay for said real estate a price satisfactory to all persons interested. NOTE.— California, C, C. P., sec. 1539. Such consent must be filed, and therefore cannot be an attached exhibit: Id., sec. 1540; Alaska, Codes, pt. 4, c. 85, sees. 830-835; Arizona, C. C, par. 1781; Idaho, C. C. P., sec. 4175; Montana, C. C. P., sec. 2674; Nevada, Comp. Laws, sec. 2918; New Mexico, Comp. Laws, sees. 1935, 2094; North Dakota, Probate Code, sees. 6428-6442; South Dakota, Probate Code, sees. 201, 239; Wash- ington, Ballinger's Codes, sec. 6260; Wyoming, Rev. Stats., sec. 4785. No. 1487.— Petition for Order of Sale of Real Estate— By- Creditor for. [Title of Court and Estate.] [The same as by an administrator or executor, except com- mence as follows :] The petition of A. B. shows to the court that he is a creditor of said estate and C. D. is the administrator thereof. That it is for the best interests of said estate and those inter- ested therein that all the real estate belonging to said estate be sold. That petitioner has requested the said administrator to apply for such order of sale but he has refused, and does now re- fuse. [Continue and state the facts shown by the record, respect- ing the condition of the estate as it appears from the inventory and statements; if any, and conclude as follows;] Wherefore petitioner prays for an order directing said admin- istrator to make a sale of all the real estate belonging to said es- tate ; and that a citation issue to him to show cause why said sale should not be made. NOTE. — Such petition must contain as many of the facts necessary to be stated in petitions for orders to sell real estate as provided in sec- tion 537, Code of Civil Procedure, where an executor or administrator makes the application. If the interested person petitioning cannot as- certain all the facts because of the silent record in the matter of the estate, he must make the best showing practicable: Cal. C. C. P., sec. 1545; Alaska, Codes, pt. 4, c. 85, sees. 830, 885; Arizona, C. C, par. 1786; Idaho, C. C. P., sec. 4180; Montana, C. C. P., sec. 2679; Nevada, Comp. Laws, see. 2923; New Mexico. Comp. Laws. sees. 1935. 2094; North Da- kota, Probate Code, sees. 2428, 6442; South Dakota. Probate Code. sees. 201-239; Utah. Rev. Stats., sec. 3888; Washington, Ballinger's Codes, sec 6262; Wyoming, Rev. Stats., sec. 4790. 862 Nsw Book of Forms, No. 1488. — Petition — Guardian for Sale of Real Estate. [Title of Court and Estate.] To the Honorable, the said Superior Court of the City and County of San Francisco, State of California: The petition of M. J., the guardian of the persons and estates of W. J., aged 4, C. J., aged 6, and B. J., aged 8 years, minors, respectfully shows : That on the twelfth day of December, ipo^, letters of guard- ianship were issued to your petitioner by this court ; that your petitioner thereupon duly entered upon the discharge of her duties as such guardian; and that such letters have not been re- voked. That within three months after her appointment, to wit, on the second day of March, ipoj, your petitioner duly returned to this court a true inventory and an appraisement of all the estate, real and personal, of her said wards that has come to her posses- sion or knowledge. That the following is a description of all the real estate belong- ing to said ward: [Description.] That the facts and circumstances upon which this petition is founded and which render a sale of the whole of the said real estate necessary and beneficial (or either), are as follows: Said zuards have no income, except the rents of said land. The best rent obtainable is three hundred dollars a year for all the 1 land. The least sum sufficient for the maintenance of said wards is $450 a year, or $130 for each. The taxes on said land aver- age $jO a year, leaving a deficit of $200 a year. It zvill be there- fore necessary to sell all of said land for the purpose of using the proceeds to maintain said wards. Wherefore your petitioner prays that this honorable court make an order directing the next of kin of the said wards, and all persons interested in the said estate, to appear before this court, to show cause why an order should not be granted for the sale of such estate ; and that upon such hearing this honorable court may order said real estate to be sold, for the maintenance and educa- tion of the said zvards, or that such other or further order may be made as is meet in the premises. And your petitioner will ever pray, etc. NOTE. — In California, when the income of an estate under guardian- ship is insufficient to maintain the ward and his family, or to maintain and educate the ward when a minor, his guardian may sell his real or personal estate for that purjjose, upon obtaining an ord^r therefor: Cal. C. C. P., sec. 1777; Alaska, Codes, pt. 4, c. 89, sees. 918-939; Arizona, C. C, par. 1997; Idaho, C. '?. P., sec. 4.366; Montana, C. C. P.. sec. 3000; Kevada, Comp. Laws, sec. 579; New Mexico, Comp. Laws, sees. 1935- Petition, 863 2004; North Dakota, Probate Code, sees. 2424-6442; Oregon, Codes and Statutes, sec. 5592; South Dakota, Probate Code, sees. 392-407; Utah, Rfv. Stats., sec. 4015; Washington, Ballinger's Codes, sec. 6411; Wy- oming, Bev. Stats., sec. 4907. No. 1489. — Petition of Guardian for Order of Sale — Real Es- tate. [Title of Court and Estate.] To the Honorable, the said Superior Court of the City and County of San Francisco, State of California: The petition of M. J., the guardian of the persons and estates of IV. J., aged 4, C. J., aged 6, and B. J., aged 8 years, minors, respectfully shows : That on the tzvelfth day of December, jpo§, letters of guard- ianship were issued to your petitioner by this court; that your petitioner thereupon duly entered upon the discharge of her duties as such guardian ; and that such letters have not been re- voked. That within three months after her appointment, to wit, on the second day of January, 1905, your petitioner duly returned to this court a true inventory and an appraisement of all the estate, real and personal, of her said wards that has come to her pos- session or knowledge. That the following is a full description of all the real estate belonging to said minors. An undivided three-eighths in all that certain lot, piece, or par- cel of land, situate in the city and county of San Francisco, state of California, and described as follows, to wit: [Description.] One-third of the above three-eightJis, that is, an undivided one- eigktJi of the zvhole of said land, belongs to each of said minors. Said minors have no other property than the above; the sum of $i6j.62''/2, belonging to each, paid to your petitioner, upon her re- ceiving letters of guardianship, by the late administratrix of the estate of their father, T. J., deceased, and mentioned in the in- ventory, having been all disposed of by your petitioner, in the maintenance and education of said minors, and she has nozv no moneys in Jicr hands belonging to said minors. The above real estate is unimproved, and yields no income wliatever; and said undivided eighth interest is of the value of $i,jOO, or thereabouts, t/iat being also the appraised value thereof. That the facts and circumstances upon which this petition is founded anc which render a sale of the whole of the said real estate necessary and beneficial are as follows; The taxes, state, and city and county, levied and collected each year, on the inter- est of said zvards in said land are $2^.^o. There is now a peti- tion before the board of supervisors of said city and county to 864 New Book of Forms. grade, sidewalk, sewer, and pave the street in front of the said land. That said petition will probably be granted and the pro- posed work done because the United Railroads Companies have a franchise for a railroad along said street, and said street is necessary for the uses of said railroad company. That your peti- tioner has been ottered $1,500 for said property. That if said property is sold, petitioner proposes, if permitted by the court, to invest the proceeds in the stock of B. W. and Company, a corpo- ration whose stock pays twenty per cent per annum dividends to its stockholders, and said dividends are liable to continue until said younger child is of legal age. Wherefore, your petitioner prays that this honorable court make an order directing the next of kin of the said wards and all persons interested in the said estate, to appear before this court at a time and place therein specified, not less than four nor more than eight weeks from the time of making such order, to show cause why an order should not be granted for the sale of such estate ; and that upon such hearing, this honorable court may order said real estate to be sold, in order that the proceeds may be put out at interest, or invested in some other productive stock, if not the stock aforesaid, or that such other or further order may be made as is meet in the premises. And your petitioner will ever pray, etc. NOTE. — In California, the court, upon the petition of the guardian, it appearing to be for the benefit of his ward that his real estate, or Bome part thereof, should be sold, and the proceeds thereof put out at interest, or invested in some productive stock, or in the improvement or security of any other real estate of the ward, his guardian may sell the same for such purpose, upon obtaining an order therefor: Cal. C. C. P., sec. 1778; Alaska, Codes, pt. 4, c. 89, sees. 918-939; Arizona, C. C, par. 1998; Idaho, C. C. P., sec. 4367; Montana, C. C. P., sec. 3001; Nevada, Comp. Laws, sec. 580; New Mexico, Comp. Laws, sees. 1935-2094; North Dakota, Probate Code, sees. 6428-6442; Oregon, Codes and Statutes, sec. 5593; South Dakota, Probate Code, sees. 392, 407; Wyoming, Rev. Stats., sec. 4958. No. 1490. — Petition — Order of Sale of Real Estate. [Title of Court and Estate.] To the Honorable /. P., judge of the said Superior Court of the City and County of San Francisco, State of California: The petition of M. J., the administratrix of the estate of T. J., deceased, respectfully shows: That said T. J. died intestate, on or about the seventeenth day of April, ipo6, in the city and county of San Francisco, being at the time of his death a resident of the city and county of San Francisco, and leaving estate in said city and county. Petition. 865 That on the sixteenth day of May, jpo6, your petitioner duly qualified as such administratrix, and that letters of administra- tion of said estate, signed by the clerk, and under the seal of said court, were thereupon duly issued to your petitioner, and have not been revoked. That your petitioner duly made and returned to said court, after her appointment, to wit, on the sixth day of June, igo6, a true inventory and appraisement of all the estate of the said deceased, which has come to her possession or knowledge, and also published notices to the creditors of said decedent as required by law. All which will more fully appear by reference to the papers on file in the clerk's office, and to the records of said court in the matter of said estate, which is hereby made. 1. That the amount of personal estate that has come to the hands of your petitioner is the sum of $4,168 $0 Appraised value of the personal property set apart for the use of the family of the deceased 287 00 Whole amount of personal property $4,455 50 That a portion of said personal property has been disposed of as follows, to wit: The said personal property set apart for the use of said family, and the sum of $458.50, cash paid, expenses of administration, and fami-ly allozvance, leaving in the hands of your petitioner the su7n of only $3,710 00 2. That the debts outstanding against the said de- ceased, as far as can be ascertained or estimated, amount at this date to the sum of ^,450 00 And are fully set forth in the schedule marked "A," hereunto annexed, and made a part of this petition. 3. That the amount due upon the family allowance is the sum of 600 00 4. That the debts, expenses, and charges of the ad- ministration already accrued, amount to the sum of. .. 4^8 50 And are fully set forth in the schedule marked "B," hereunto annexed, and made a part of this petition. 5. That the debts, expenses and charges of admin- istration that will or may accrue during the adminis- tration are estimated by your petitioner at the sum of 1,195 4S And are fully set forth in the schedule marked "C," hereunto annexed, and made a part of this petition. New Forms — 55 866 New Book of Forms. Whole amount of the debts outstanding against the deceased, of the amount due and to become due upon the family allowance, of the debts, expenses and charges of administration already accrued and remaining un- paid, state and county taxes, and of the estimated debts, expenses and charges of administration that will or may accrue $4,41^.48 That a full description of all the real estate of which the said decedent died seised, or in which he had any interest, or in which the said estate has acquired any interest, and the condition and value of the respective portions and lots of said real estate, are set forth in the schedule marked "D," hereunto annexed, and made a part of this petition. That the ivhole of said real estate zvas acquired by said de- ceased, after his marriage to your petitioner, and is therefore coymnnnity property. That the following are the names and ages of the devisees {if any] and heirs of the said deceased, to wit: /. /., aged tzventy- three years, W. J., aged eighteen years, C. J., aged sixteen years, and E. J., aged fourteen years, the children of said deceased and your petitioner. Your petitioner therefore alleges that the personal estate in the hands of your petitioner is insufhcient to pay the allowance of the family, the debts outstanding against the deceased, and the debts, expenses, and charges of the administration, and that it is necessary to sell the whole or some portion of the real estate for such purposes. >> SCHEDULE "A. Claim of J. S., for the sum of $1,^00, tvith interest on the sum of $1,000, at the rate of two per cent per month, from the twentieth day of April, igo6. Allowed and approved by the administratrix June 21, 1006, and by the judge of this court June 22, jpo6. Claim of G. T., funeral expenses, for the sum of $200. Allowed and approved by the administratrix June 21, ipo6, and by the judge of this court June 2^, ipo6. Claim of Dr. C. G. B., expenses last sickness, for the sum of $250. Allowed and approved by the administratrix and the judge of this court July i, ipo6. Claim of A. P., balance of account, for the sum of $joo. Allozved and approved by the administratrix and the judge of this court July 5, ipo6. Total, $2,450. Petition, 867 SCHEDULE "B." Pees of clerk of this court $ 16 50 Fees of appraisers of estate 30 30 Fees of attorney for administratrix 100 00 Publication of notice to creditors 5 00 Publication of notice of application for order of sale of personal property 5 00 Notary fees, affidavits to return of sale of personal property -^ 5^ Allowance to family of deceased s^o 00 $ 458 30 SCHEDULE "C." Fees of attorney for administratrix upon closing said estate, as per agreement $ 400 00 Co-mmissiofis upon $14,1^/. 00, the appraised value of said estate and the probate amount of the whole es- . tate to be accounted for by the said administratrix, upon the settlement of her final account (5p5 48 Other expenses 100 00 $1,193 4S SCHEDULE "D." [Give list and value of real property, describing same by metes and bounds, and stating whether it is improved or unimproved, the number and character of the buildings, etc., the amount of rents received from it, and any other fact tending to show the condition of the property.] [That it will be for the best interests of this estate to sell said property at private sale, giving reasons.] Wherefore your petitioner prays that an order be made by said court [or your honor] directing all persons interested in said estate to appear before said court at a time and place specified, not less than four nor more than ten weeks from the time of making such order, to show cause why an order should not be granted to your petitioner to sell so much of the real estate of the deceased as shall be necessary, at private sale. And that after a full hearing of this petition, and examination of the proofs and allegations of the parties interested, and due proof of the publication of a copy of said order to show cause, etc., an order of sale be made authorizing your petitioner to sell so much and such parts of the said real estate as said court shall judge necessary or beneficial ; or that such other or further order may be made as is meet in the premises. And your petitioner will ever pray, etc. 868 New Book of Forms. NOTE. — In California the petition must be verified, setting forth the amount of personal estate that has come to the petitioner's hands, and how much remains undisposed of; the debts outstanding, as far a3 can be ascertained or estimated; the amount due upon the family allow- ance, or what will be due after the same has been in force for one year; the debts, expenses, and charges of administration already accrued, and an estimate of what will or may accrue eluring the administration [a gen- eral description of all the real property of the state or in which de- ceased had any interest, or in which the estate has acquired any inter- est, and the condition and value thereof, and whether the same be com- munity or separate property; the names of the legatees and devisees, if any, and of the heirs of the deceased, so far as known to the peti- tioner. If any of the matters here enumerated cannot be ascertained it must be so stated in the petition; but a failure to set forth the facts showing the sale to be necessary will not invalidate the subsequent pro- ceedings if the defect be supplied by the proofs at the hearing, and the general facts showing such necessity be stated in the decree] : Cal. C. C. P., sec. 1537; Alaska, Codes, pt. 4, c. 85, sees. 830-858; Arizona, C. C, par. 1778; Idaho, C. C. P., sec. 4172; Montana, C. C. P., sec. 2671; Nevada. Comp. Laws, sec. 2915; New Mexico, Comp. Laws, sees. 1935- 2094; North Dakota, Probate Code, sees. 2428-6442; Oregon, Codes and Statutes, sec. 1173; South Dakota. Probate Code, sees. 201-239; Utah, Rev. Stats., sec. 3888; Washington, Ballinger's Codes, sec 6257; Wyoming, Rev. Stats., sec. 4782. No. 149 1. — Petition for Order to Sell Real Estate to Pay In- heritance Tax. [Title of Court and Estate.] [The same as in No. 1490, down to and including the words, "That the following- are the names and ages of the heirs of said deceased," and continue as follows:] That all the personal property and the real estate has been ex- hausted in the payment of the debts, expenses and family allow- ance and state and county taxes. That it is necessary to sell all the real estate belong-ing to the estate to pay the inheritance tax imposed by the laws of the state of California. That the said real estate consists of a mining claim and improvements. That its appraised value is thirty-five thousand dollars. That petitioner's exemption is $25,000. That since the death of her husband petitioner mortgaged her inter- est in said mine for $15,000 and expended it in improvements and in developing said mine. That interest at ten per cent per year has been accumulating on said inheritance tax during said mort- gage and there is now due the state of California $500 principal and $200 interest, and on said mortgage $15,000 principal and $3,000 interest. Wherefore, etc. [the same as in No. 1490]. NOTE.— Act of March 20, 1905; Stats., p. S41, sec 5, Petition. ' 86tj No. 1492. — Petition — Mortgage to. [Title of Court and Estate.] The petition of M. D., the administratrix of the estate of C. D., deceased, respectfully shows: 1. That said C. D. died intestate in the said city and county of San Francisco, state of California, on the 6th day of May, IQO^. That at the time of his death he was a resident of said city and county, and left estate therein consisting of real and personal property. 2. That on the 26th day of May, IQ03, on proceedings herein for that purpose duly had, your petitioner was, by this court, ap- pointed the administratrix of the estate of said C. D., deceased, and she having thereupon duly qualified as such administratrix, letters of administration of the said estate were duly issued to her on said day. At all times since she has been, and now is, the duly appointed, qualified, and acting administratrix of the estate of C. D., deceased. That on the 2 2d day of August, 1903, your petitioner returned and filed herein a true inventory and ap- praisement of all the property of said estate. That your peti- tioner has caused notice to the creditors of said deceased and of his said estate to be published, as required by law and the order of this court : and that heretofore, to wit, on May JJ, 1904, this court made and filed herein its decree declaring that due notice to said creditors had been duly given. That the time for presen- tation of the claims of said creditors has expired. That on the 13th day of August, 1904, your petitioner filed herein her first annual account of her administration of said es- tate, which, on the 28th day of August, 1904. was, by this court, duly approved as rendered. That by said account it appeared that there was then in her hands belonging to said estate a cash balance of eight hundred and ninety and i-ioo dollars. That she has since collected the further sum of $1,000, so that the total amount now in her possession belonging to said estate is tlie sum of $1,890 I-IOO. That the other personal property of said estate consists of promissory notes and bills receivable for store accounts zvhich are difficult to collect or realise upon, and that the same cannot be collected within one year herefrom. Upon her information and belief she states that the total amount of money finally rea- lised from said collection will not exceed the sum of $3,000. [Description.] That the real property of said deceased and of his said estate is situated in the city and county of San Francisco, and is de- scribed a^ follows: 870 Nfiw Book 0? Forms. That the said lot of land has five buildings thereon, and that they now yield a monthly rental of one hundred and ten dollars. That the value of said real property, as set forth in said appraise- ments on file herein, is the sum of twenty thousand seven hundred and sixty-eight dollars. That said real property is encumbered by (i) a mortgage to secure the payment of two thousand dollars by said deceased, the claim wherefor has been presented and allowed herein as a debt of said estate, and {2) a lease for five years from March i, 1904, covering the southwest corner of said lot fronting thirty-one and a half feet on Filbert street by ninety feet on Fillmore street. That claims of the creditors of said deceased and of his said estate have been presented, approved and filed herein as follows: Claimant. Character of Claim. Amount due. T. & B. Merchandise $1049 79 P. C. C. C. M. Co. " 230 00 O. L. " 27 75 [If others state same as above.} There has been paid on account of the above claims and of the interest thereon the sum of eleven hundred and seventy -four dol- lars. That the total amount thereof now due and unpaid is the sum of nine thousand six hundred and ninety-four 27-100 dol- lars. That there are no legacies nor charges of administration nozv due or unpaid. That it would be to the advantage of said estate to borrow the sum of ten thousand dollars secured, to be repaid by a mortgage on the hereinbefore described real property, for the follozving reasons, namely; The approved claims of creditors of said estate, amounting to about ten thousand dollars, as hereinbefore stated, are now due and must speedily be paid by said estate. The proceeds of the personal property of said estate cannot be realised upon within one or more years, and can then pay only a small portion of said indebtedness of the estate. Hence, money to pay that indebted- ness must be procured at once, either by a sale of said real prop- erty or by a loan secured by mortgage on it. But the real estate market in this city and county is in a greatly depressed condi- tion, and a sale of said real property at this time zvould reali::e, as your petitioner is informed and believes, not more than sev- enty-five per cent of its said appraised value. In the judgment of real estate dealers, if such sale be deferred for tzvo years, it would realise for said estate a price equal to, or exceeding, the said appraised value; and your petitioner coincides in that opin- ion. That the present rents of the said real property will pay the in- terest on such mortgage, and leave a small surplus to be applied to the support of the family of said deceased. PEnriTioN. 871 That the said deceased left no will or testament, and hence, no devisees nor legatees. That the heirs and next of kin of said C. D., deceased, surviving him are your petitioner, his surviving wife, and their tzvo children, M. D., aged thirteen years, and F. C. D., aged eleven years, both residing with your petitioner in this city and county. Your petitioner alleges, therefore, that it would be for the ad- vantage of said estate to raise sufficient money by a mortgage on said described real property of said estate wherewith to pay the said approved claims and debts of said estate. Wherefore, your petitioner prays for an order of this court authorizing, empowering and directing her, as the administratrix of said estate to borrow the sum of ten thousand dollars, or such lesser sum as shall to the court appear necessary wherewith to pay the debts of said estate, for a period of not less than tzvo years, at a rate of interest not exceeding eight per cent per annum, payable monthly during said period, and to mortgage to the lender of such money to secure to him the repayment of such loan, the hereinbefore described real property of said de- ceased and of his said estate, and that in said mortgage she be permitted to make such covenants as are usually in such instru- ments contained and not contrary to the provisions of law in this regard. Verified. NOTE. — In California to obtain an order to mortgage realty: The executor, administrator, g^uardian of any minor, or incompetent person, or any person interested in the estates of such decedents, minors, or incompetent persons may file a verified petition, showincr; 1. The par- ticular purpose or purposes for which it is proposed to make the mort- gage, which shall be either to pay the debts, legacies, or charges of administration, or to pay, reduce, extend, or renew some lien or mortgage already subsisting in [on] said realty, or some part thereof; 2. A statement of the debts, legacies, charges of administration, liens, or mortgages, to be paid, reduced, extended, or renewed, as the case may be; 3. The advantage that may accrue to the estate from raising the required money by mortgage, or providing for the payment, reduc- tion, extension, or renewal, of the subsisting liens, or mortgages, as the case may be; 4. The amount to be raised, with a general description of the property proposed to be mortgaged; and 5. The names of the legatees and devisees, if any, and of the heirs of the deceased, or of the minor, or of the incompetent person, as the cnse may be, so far as known to the petitioner: Cal. C. C. P., sees. 1577, 1578. See Order. See, also. Mortgage Order of Court. Arizona, C. C. pars. 1S16-1S23; Mon- tana, C. C. P., sec. 2(541; New Mexico. Comp. Laws, sees. 1935-2094; North Dakota. Probate Code, sees. 6454, 6455; Oregon, Codes and Statutes, sec 1195; South Dakota, Probate Code, sees. 240, 241; Utnh. Eev. Stats., sees. 3908, 3909; Washington, Ballinger's Codes, sec. 6265. No. 1493. — Petition — Church to Mortgage. [Title of Court and Cause.] To the Honorable, the Superior Court of the City and County of San Francisco, State of California: 872 New Book of Forms. Your petitioners, "The Trustees of the Narrow Path Church, of the City and County of San Francisco," in the said state of California, respectfully represent: That they are a religious cor- poration, duly incorporated according to the provisions of the laws of this state, under the corporate name of "The Trustees of the Narrow Path Church, of the City and County of San Fran- cisco." That they are seised and possessed, as such trustees as afore- said, of certain real estate situated in said city and county of San Francisco, bounded and described as follows, viz.: [Description.] That P. D. S., J. L. J. and J. B., are the present trustees of said church, and compose said corporation ; and that P. D. S. is president, and /. L. J., secretary of said board of trustees. That there is erected and now standing and being upon said lot, a large and valuable building, used by said church, and the congregation connected therewith, for stated meetings for reli- gious worship. That the said corporation is now indebted in the sum of about iive thousand dollars, which indebtedness has been contracted for the improvement of said property and the benefit of said church and congregation. That the immediate necessities of said church and corporation require that said trustees should have at their disposal, for the meeting of the necessities of said church and congregation, the sum of five thousand dollars. That they have no money whatever on hand belonging to said corporation. That the current receipts are about sufficient to meet the cur- rent expenses of said church, and the interest on the sum of tive th.ousand dollars, at the rate of one per cent per month. That they can procure the said sum of five thousand dollars for the period of one year, with the privilege of continuing the same for two years, at the rate of one per cent per month in- terest, and that your petitioners are unable to obtain the same at any less rate of interest, or on any more favorable terms than above named. That at a meeting of the said church and congregation, held at the meeting-house of said church, on the tzvcnty-third day of Sep- tember, i()o6, a resolution was adopted by a unanimous vote of the members present, directing your petitioners to efifect a loan not exceeding five thousand dollars, for the purposes above named. That said meeting at which said resolution was adopted was duly called, and notice thereof given from the pulpit on the preceding Sabbath for that special purpose. Petition. 873 And that it would be for the benefit, interest and advanta^^e of said church and conc^regation that said loan should be made, and said note and mortgage executed. Wherefore, your petitioners pray that an order may be made by this court for the mortgaging of said real estate to secure the payment of such loan, not exceeding iivc thousand dollars, as said corporation can effect for the period of one year or longer, not exceeding txvo years, at a rate of interest not exceeding one per cent per month; and also allowing said corporation trustees as aforesaid to make and deliver with said mortgage a promis- sory note, under the corporate seal and in the corporate name of said corporation, for the said sum so obtained as aforesaid, to any person furnishing said sum of money as aforesaid. NOTE. — In California any number of persons may incorporate for any purpose, where pecuniary profit is not their object, and for which individuals may lawfully associate themselves. (This note refers only to what is known as religious corporations and corporations not organ- ized for profit.) Corporations of this character may mortgage or sell real property held by them, upon obtaining an order for that purpose from the superior court held in the county in which the property is situated. Before making the order, proof must be made to the satisfaction of the court that notice of the application for leave to mortgage or sell has been given by publication in such mnnner and for such tim? as the court or the judge has directed, and that it is to the interest of the corporation that leave should be granted as prayed for. The application must be made by petition, and any member of the corporation may onpose the grant- ing of the order bv affidavit or otherwise: C. C, sees. 593-598; Arizona, C. C, par. 894; Idaho, C. C, sees. 2275-2288; Montana, C. C, sees. 860.3- 8605; Nevadn, Comp. Laws, sec. 894; New Mexico, Comp. Laws, sec. 466: North D.akota, C. C, sec. 3174; Oregon, Codes and Statutes, sec. 5186; South Bnkota, C. C. sec. 757; Utah, Eev. Stats., sees. 346, 347; Washington, Ballinger's Codes, sec. 4434; Wvoming, Rev. Stats., sec. 3238-3245. No. 1494. — Petition to Lease Realty by Executor, Adminis- trator or Guardian. [Title of Court and Estate.] The petition of B. D. states that she is the administratrix of the estate of C. D.. deceased. That said estate is the owner of the certain house and lot in said city and county described as follows: [Description.] That said property is community property of deceased and your petitioner, his surviving wife. That the time for presenting claims against said estate has expired, and there is enough money in the hand of the administratrix sufficient to pay the family al- lowance, the expenses of administration and all claims against the estate. 874 New Book of Forms. That said property will be distributed to petitioner and her and deceased's son, B., aged i6 years, he being their only child and only heir at law of deceased. That G. H. has made an offer to lease said property during the minority of said child at a rental of $200 a month, and petitioner is informed and believes that the offer is advantageous to said estate, and petitioner is advised that if said lease is executed be- fore said property is distributed that the lessee will hold good for the time stated in the lease. The rents are to be paid on the first day of every month in advance ; and all improvements made by the lessee to become the property of tlie lessors and the lease is not to be sublet nor assigned. Wherefore, etc. NOTE.— California, C. C. P., sec. 1579. No. 1495. — Petition — Surviving Partner to Render Account. [Title of Court and Estate.] To the Honorable, the Superior Court of the City and County of San Francisco, State of California: H. J., administrator of the estate of W. B., deceased, respect- fully shows: That at the time of the death of said deceased, to wit, on Janu- ary 2, 1906. there was a partnership between deceased and S. B., composing the late firm of B. & B., and doing business as grocers under said name and style at ^^^9 Valencia street, in said city and county. That said surviving partner continued, and still is, in posses- sion of the effects of the said partnership for the purpose of set- tling the business. That the interest of the said deceased, to wit, one-half of the assets of said partnership, was included in the inventory here- tofore made and returned by said administrator to this court, and was appraised as other property, the appraised value thereof being the sum of $2,i6y.9y. That the said surviving partner has delayed and is delaying the settling of the affairs of said partnership, more than one year having elapsed since the said inventory has been filed ; and has not accounted with the said administrator, though often requested so to do, but has refused, and still refuses, to account with said administrator, or to give any information as to the condition of the affairs of said partnership; and has never paid over any such balances as may, from time to time, have been payable to Petition. 875 said administrator on account of said estate [or said partner has protniscd to account, but has, and still docs, neglect to render said accowit] . That there are many debts outstanding against said deceased, and that it has become necessary to ascertain the value of said partnership interest in order to determine the necessity of selHnj^ real estate to pay said debts, and the debts, expenses, and charges of the administration. Wherefore, said administrator applies to this court for an order that the said surviving partner render an account of the said part- nership, showing a full statement of its affairs at the time of the death of said deceased, and the condition thereof from that time until the day of rendering said account, and for such other or further order as may be meet in the premises. NOTE. — In California, upon the petition [application] of the execu- tor or administrator, the court may order a surviving partner of the deceased to render an account and may enforce the order by contempt proceedings [attachment]: Cal. C. C. P., sec. L585. [For attachment, see Contempt Proceedings Superior Court.] Alaska, Codes, pt. 4, c. 81, sees. 790-796; Arizona, C. C, par. 1829; Idaho, C. C. P., sec. 4216; Mon- tana, C. C. P., sec. 2734; Nevada, Comp. Laws, *sec. 2954; New Mexico, Comp. Laws, sees. 1935-2094; North Dakota, Probate Code, sees. 6377, 6383; Oregon, Codes and Statutes, sees. 1130, 1132; South Dakota, Pro- bate Code, sec. 246; Utah, Eev. Stats., sec. 3918; Washington, Bal- linger's Codes, sees. 6190, 6192; Wyoming Eev, Stats., sec. 4697. No. 1496. — Petition for an Order Directing Executor to Con- vey Land Under a Contract with Deceased. [Title of Court and Estate.] To the Honorable, the Superior Court of the City and County of San Francisco, State of California: The petition of M. O'K. respectfully represents: That S. D., on the 4th day of December, ipo^, executed and delivered to these petitioners a contract in writing wherein and whereby he agreed to sell and convey to your petitioners for the sum of $6§o, that certain real property situate in the city and county of San Francisco, state of California, described as follows, to wit: [Description.] That there has been paid on account of said purchase price and interest the sum of $44P, and on May 24, 1904, there was the sum of $201 owing on said contract of purchase, and by the tenns of said contract your petitioners were entitled to pay said amount at the rate of ten dollars per month, together with interest at six per cent per annum, and were also entitled to pay the total amount S';6 New Book of Forms. owing on said purchase price at any time they might elect to do so, and thereupon to receive a deed for said real property. That said S. D. died on the 5th day of April, 1904, and after proceedings duly had therefor the will of said decedent was ad- mitted to probate in this court, and /. C. R. has been appointed executor of said will, and letters testamentary duly issued to him, and he is now the duly qualified and acting executor of said will. That your petitioner is ready and willing and desires to pay in full the balance owing on said contract of purchase hereinbe- fore described, and is entitled to a conveyance of said real prop- erty from said executor, as provided for in sections 1597, 1598, 1599, 1600 and 1601 of the Code of Civil Procedure of the State of California. Wherefore your petitioner prays that this petition be set for hearing, and due notice thereof given, and that on the hearing thereof a decree be entered authorizing and directing the said executor to execute a conveyance of said property to said peti- tioner upon said payment of said sum of $201, together with in- terest of said sum from May 24, 1904, at the rate of six per cent per annum, and that the court make such other order in the prem- ises as may be proper. NOTE.— California, C. C. P., sees. 1597-1607; Arizona, C. C, par. 1719; Idaho, C. C. P., sec. 4113; Montana, C. C. P., sec. 2559; Nevada, Comp. Laws, sec. 2879; New Mexico, Comp. Laws, sees. 1935-2094; North Da- kota, Probate Code, sees. 6456-6459; Oregon, Codes and Statutes, sec. 1147; South Dakota, Probate Code, sees. 254-264; Utah, Eev. Stats., sec, 3912; Washington, Ballinger's Codes, sec. 6200; Wyoming, Rev. Stats., sec. 4688, No. 1497. — Petition for Order Directing Administrator to Convey Land — Objections to. [Title of Court and Estate.]. Now comes A. B., an heir at law of said deceased, and object- ing to the petition of C. D. for an order directing the administra- tor of the estate of B. F., deceased, to convey to him the land de- scribed in his petition, for cause of contest alleges the fact to be that the alleged written contract to convey was not binding upon said deceased, because said alleged contract was not signed by> flic said deceased, but his name was zvritten to it by one P. G. H., and then marked by the mark of the said deceased, and the only zvitness to tliat signature of said deceased was the said G. H. NOTE. — Any interested person may appear and by written objections contest such petition: Cal. C, C. P., sec. 1599. Section 17, Code of Civil Procedure, provides that when a signature is by "mark," in ordrr that the same may be acknowledged or may Petition. ^y-^ serve as a signature to any sworn statements, it must be witnessed by two persons who must subscribe their own names as witnesses thoreto. It is not certain that such objection would be good to a petition for an order directing an administrator to make the conveyance j)rayed for because his acknowledgment would ertitle the conveyance to be recorded: Arizona, C. C. par. 1838; Idaho, C. C. P., sec. 4220; Montana, C. C. P., sec. 2752; New Mexico, Comp. Laws, sees. 19.35-2094; North Da- kota. Probate Code, sees. 0456-0459; South Dakota, Probate Code. sees. 254-204; Washington, Ballinger's Codes, sec. 6383; Wyoming, Rev. Stats., sec. 4819. No. 1498. — Petition for Citation by Creditor — Administrator to Account. [Title of Court and Estate.] The petition of A. B. represents to the court that, she is the widow of said deceased, and that the time for presenting- claims against said estate expired on June 5, 1905, and more than one year has expired without an account having been rendered by C. D., administrator of said estate, wherefore she requests the court to cite said administrator to render an account of his adminis- tration. NOTE.— California, C. C. P., sec. 1624; Alaska, Codes, pt. 4, c. 86, ^ sees. 859-S71; Arizona, C. C, par. 1856; Idaho, C. C. P., sec. 4244; Mon- ! t-ana, C. C. P., sec. 2782; New Mexico, Comp. Laws, sees. 1935-2094; North ' Dakota, Probate Code, sees. 6486-6489; South Dakota, Probate Code, sees. 205-290, 301: Washington, Ballinger's Codes, sec. 6317; Wyoming, Rev. Stats., sec. 4714. No. 1499. — Petition that Court may Order Administrator to Render an Account. [Title of Court and Estate.] The petition oi A. B. shows that he is a creditor of the above- entitled estate, and that his claim for $1,000 has been presented to said administrator and has been approved by him and also by this court, but has never been paid. That the first account cf said administrator made after the expiration of the time for the presentation of claims against said estate showed that he had on deposit in the C. D. E. Trust Company funds sufficient to pav all the debts of said estate and all expenses of administration. That since said account was filed petitioner has been informed and he believes that said administrator has withdrawn said funds from said trust company and used more than thirty per cent of said funds in purchasing wheat in open market for his own account, and has sustained a great loss. 878 New Book of Forms. Wherefore petitioner prays that the court will order a citation to issue to said administrator requiring him to appear and render an exhibit, showing the amount of money received and expended by him and all other matters to show the condition of the affairs of said estate. NOTE. — "When such order is made and the administrator appears, he may be examined, and if he has been guilty as charged his letters must be revoked: Cal. C. C. P., sec. 1626; Alaska, Codes, pt. 4, c. 86, sees. 859-871; Arizona, C. C, par. 1858; Idaho, C. C. P., see. 4246; Montana, C. C. P., sec. 2784; Nevada, Comp. Laws, sec. 2974; New Mexico, Comp. Laws. sees. 19.35-2094; North Dakota. Probate Code. sees. 6486-6489; Oregon, Codes and Statutes, sec. 1203; South Dakota. Probnte Code, sees. 265-290. .301; Washington, Ballinger's Codes, sec. 6319; Wyoming, Rev. Stats., sec. 4716. No. 1500. — Petition of Administrator with the Will Annexed for Citation Ordering Former Executor to Account. [Title of Court and Estate.] This court having revoked its appointment of A. B., as execu- tor of the last will of C. D., deceased, petitioner, the administra- tor, with the will annexed, of said estate, petitions the court for a citation commanding the said A. B. to render, within ten davs from the service of said citation, a full account and report of his administration. NOTE.— California, C. C. P., sec. 1629; Alaska, Codes, pt. 4, c. 86, sees. 859-871; Arizona, C. C, par. 1863; Idaho, C. C. P.. sec. 4249; Mon- tana, C. C. P., sec. 2787; Nevada, Comp. Laws, sec. 2979; New Mexico, Comp. Laws, sees. 1935-2094; North Dakota, Probate Code, sees. 6362- 6371, 6486-6489; South Dakota, Probate Code, sees. 265-290, 301; Wash- ington, Ballinger's Codes, sec. 6322; Wyoming, Rev. Stats., sec. 4719. No. 1501. — Petition for an Order Directing Executor to Invest Funds of an Estate in State Securities. [Title of Court and Estate.] The petition of A. B. states that she is the widow of the C. B., deceased. That E. P., the executor of the last will of deceased, has in his possession $100,000 of the moneys of said estate on general deposit in The People's Home Bank, without interest. That it is for the best interest of said estate that said monev be invested in safe marketable securities. [The said estate having no creditors and there being enough rents and interest becoming due it is unnecessary for said executor to reserve any money for the expenses of the estate, costs, legacies or for any other pur- pose. Petition. 879 Wherefore petitioner prays for an order directing said execu- \ tor to invest said $100,000 in securities of the state of California. NOTE. — Under such circnmstances the conrt may order such invest- m?nt or in United States bonds: Cal. C. C. P., sec. 1640; Arizona, C. C par. 1874; Idaho, C. C. P., sec. 422.3; Montana, C. C. P., sec. 279S; New Mexico, Comp. Laws, sees. 19.'?5-2094; North Dakota, Probate Code, sec 6503; South Dakota, Probate Code, sec. 290; Utah, Rev. Stats., sec. 3925. No. 1502. — Petition — Partial Distribution for. [Title of Court and Estate.] The petition of /. B., a resident of Downieville, in the county of Sierra, state of California, shows: That he, the said /. B., is a brother and heir to the estate of the said deceased, late of said county of Sierra, who died on the tenth day of January, 1904, and having no surviving wife and no issue. And your petitioner further shows, that H. S., of said county, is administrator of said estate, the total value whereof, as appears by the inventory and appraisement thereof on file in said court, amounts to the sum of $9,763, and that more than four months have elapsed since the issuing of letters of administration on said estate to the said H. S., and that, as your petitioner is informed and believes, there are no claims outstanding against said estate [or state the amount of claims]. Wherefore, your petitioner prays for an order of distribution of the said estate, and that the share of said estate of which he is entitled, to wit. all the property and funds belonging to the same, remaining in the hands of the said administrator after payment of the costs and expenses of administration, may be given to the petitioner upon the execution and deliver\' to the said adminis- trator of the indemnity bond in such cases by law required, and for such other and further order and relief in the premises as may be just. And your petitioner will ever pray, etc. NOTE. — In California, after the lapse of four months from the issuing of letters, any heir, devisee, or legatee may petition the court for the legacy or share of the estate to which he is entitled, to be given to him upon his giving bonds, with scurity, for the payment of his pro- portion of the debts of the estate: Cal. C. C. P.. sec. 165R; Alaska, Codes, pt. 4, c. 87, sees. 872-880; Arizona, C. C. par. 1886; Idaho. C. C, P., sec. 4270; isrontnna, C. C. P., sec. 2SaO; Nevada. Comp. Laws. sec. 2993; New Mexico, Comp. Laws, sees. 1035-2094; North D.akota, Pro- bate Code, sees. 6504-6508; Oregon, Codes and Statutes, sec. 1222; South Drkofji. Probate Code, sees. 302-306; Utah, Rev. Stats., sec. 2948; Wash- ington, Ballingcr's Codes, sec. 6347; "Wyoming, Rev. Stats., sec. 4S26. 88o New Book of Forms. No. 1503. — Petition of Heir, Devisee or Legatee for His Share of Estate. [Title of Court r.nd Estate.] To the Honorable, the Superior Court in and for the County of Alameda, State of California: Your petitioner, A. B., states that he is a legatee under the last will of S. D., deceased. That letters testamentary upon the said last will were issued to /. C. R. on June i^, 1904, who qualified and he is now the qualified and acting executor of said will. That petitioner's legacy is $10,000. That more than four months have elapsed since said letters were issued. That said estate is but little indebted, and the said $10,000 may be allowed to petitioner with- out loss to the creditors of the estate. Wherefore, petitioner prays that he may be paid his said share and tliat the court will cause notice to be given of his application. NOTE. — When the facts are as above stated, notice must be given of the application as is required upon settlement of an account, and the court "must" make an order. in conformity with the prayer of the ap- plicant. The applicant must give a bond in the amount as ordered by the court for the payment of his share of the debts of the estate. The executor or any interested person may appear and resist the application: Cal. C. C. P., sees. 1658-1661; Alaska, Codes, pt. 4, c. 87, sees. 872-886j Arizona, C. C., par. 1886; Idaho, C. C, sec. 4270; Montana, C. C, sec. 2830; Nevada, Comp. Laws, sec. 2993; New Mexico, Comp. Laws, seca. 1935-2094; North Dakota, Probate Code, sees. 6504-6508; Oregon, Codes and Statutes, sec. 1222; South Dakota, Probate Code, sees. 302-306, Utah, Rev. Stats., sec. 2948: Washington, Ballinger's Codes, sec. 6347; Wyom- ing, Bev. Stats., sec. 4826. No. 1504. — Petition of Heir at Law for His Portion of an Es- tate. [Title of Court and Estate.] To the Honorable, the Superior Court in and for the City and County of San Francisco, State of California: The petition of M. S. states that she is an heir at law under the last will of S. D., deceased. That letters testamentary were on the i^th day of June, 1904, issued to /. C. R., who qualified and he is now the qualified and acting executor of said will. That the as- sets of said estate amount to over $1,800,000. That all its debts have been paid except about $q,ooo. That petitioner's share of said estate under the said will is one-third. That a paper has been found and filed for probate which is alleged to be a codicil of said will, and a contract has been filed but its validity has not been de- termined. That said codicil, if admitted to probate as a part of PETITION. 88 1 the will already admitted will reduce petitioner's share of said estate to about $500,000, and after all expenses, costs, debts, taxes and charges of administration are paid, in any event, petitioner's share will amount to over $400,000. [Or, that all the property of said estate, has been reduced by sales to money, ivhich amounts to $1,800,000. Or, the estate consists of $500,000 in money and $1,^00,000 in bonds. Or, the estate consists of $500,000 in money and $i,joo,ooo in real estate described in the inventory and ap- praisement. Or, the estate consists of real estate appraised at $800,000, stocks, $100,000, United States bonds, $300,000, mort- gages, $50,000, promissory notes, $50,000.] Wherefore, petitioner prays for an order directing the distribu- tion to her of the sum of $250,000 to be charged to her as a part of her share of said estate. NOTE.— California, C. C. P., sees. 1658-1663. Usually a bond is or- dered to secure the executor against loss, but when all debts have been paid or are secured by mortgage, and the court is satisfied that no in- jury can result to the estate, it may dispense with the, bond: Cal. C. C. P., see. 1663; Alaska, Codes, pt. 4, c. 87, sees. 872-886; Arizona, C. C, par. 1886; Idaho, C. C. P., sec. 4270; Montana, C. C. P., sec. 2830; Kevada, Conip. Laws, sec. 2993; New Mexico, Comp. Laws, sees. 1935- 2094; North Dakota, Probate Code, sees. 6504-6508; Oregon, Codes and Statutes, see. 1222; South Dakota, Probate Code, sees. 302-306; Utah, Kev. Stats., sec. 2948; Washington, Ballinger's Codes, see. 6347 j ■Wyoming, fiev. Stats., sec. 4826. No. 1505. — Petition Praying a Court to Ascertain and De- clare the Rights of all Persons to an Estate. [Title of Court and Estate.] To the Honorable, the Superior Court in and for the City and County of San Francisco, State of California: The petition of A. B. states that S. D. died testate in the city and county of San Francisco, state of California, on April 5, 1904. That thereafter such proceedings were had that on the i^th day of June, 1904, J. C. R. was appointed by said court executor of the last will of deceased and on the said 13th day of June, he qualified and letters testamentary were issued to him, and he is now the qualified and acting executor of said will. That more than one year has expired from the issuing of said letters. That petitioner is an heir at law of said deceased. That he has been informed and he believes that certain persons who are not heirs of said deceased claim to be his heirs. Wherefore, petitioner prays the court to ascertain and declare the rights of all persons to said estate, and all interests therein, and to whom distribution thereof should be made. New Forms — 06 882 New Book of Forms. NOTE. — When the petition is filed the court will make an order di- recting service of notice to all persons interested in the estate to ap- pear and "show cause": Cal. C. C. P., sec. 1664. It is diflBeuIt to as- certain what cause interested persons are cited to show. It is certain that a proceeding under the Code of Civil Procedure to determine heir- ship cannot be instituted until the expiration of a year from the is- suance of letters: Smith v. Westerfield, 88 Cal. 374, 26 Pac. 206. The matter does not concern an administrator, and he will not be allowed to litigate the claim of one alleged heir against another: Estate of Oxarart, 78 Id. 109, 20 Pac. 367. The pendency of proceedings to determine heirship does not deprive the court of jurisdiction to determine the heirship upon petition for final distribution: "Estate of Sheid, 129 Id. 172, 61 Pac. 920. If an assignee of an interest in an estate petitions for final distribu- tion, it is error to distribute the property to the assignors: Estate of Vaughn, 92 Cal. 192, 28 Pac. 221. An assignee of an interest in an estate has authority to receipt for such interest: Estate of Phillips, 71 Id. 285, 12 Pac. 169; but if an assignee neglects to assert bis rights and have his interest assigned directly to himself, he is estopped by the decree of distribution from asserting title: Freeman v. Rohm, 58 Id. 110, 114; Montana, C. C. P., sees. 2840, 2841; New Mexico, Comp. Laws, sees. 1935-2094; North Dakota, Probate Code, sees. 6341-6345; Utah, Rev. Stats., sees. 3981, 3982; Wyoming, Rev. Stats., sees. 4835-4837. No. 1506. — Petition of Assignee of Heir at Law for Distri- bution of Assignor's Share to Him. [Title of Court and Estate.] To the Honorable, the Superior Court in and for the County of Butte, State of California: Now comes A. B. and petitioning the court for final distribution of the above-entitled estate, states the facts to be : That the said administrator's final account has been filed. That a report by said administrator accompanying said account states that said estate is ready for distribution ; and alleges that the heirs at law of de- ceased are A. C, a daughter, L. C. and F. C, sons of deceased, and that he left surviving no other heirs at law ; and now petitioner states to the court that deceased died the father of two daughters and two sons, to wit, the above-named daughter and sons and M. C. R., a deceased daughter. That said deceased daughter mar- ried one 0. P. R., and petitioner is the only child of said M. C. R and O. P. R., and petitioner's father and mother are both dead. That said final account has been allowed and settled and said estate is now ready for distribution. Wherefore, petitioner prays that the share of said estate that would be distributed to his mother, were she living, may be dis- tributed to him. NOTE.— California, C. C. P., sees. 1665-1668; Alaska, Codes, pt. 4, ♦•. 87, sees. 872, 886; Arizona, C. C, par. 1896; Idaho, C. C. P., sees. 4275- Petition. 883 4277; Montana, C. C. P., sees. 2843-2845; Nevada, Comp. Laws, seca. 3001, 3002; New Mexico, Comp. Laws, sees. 1935-2094; North Dakota, Probate Code, sees. 6504, 6515, 6516; South Dakota, Probate Code, sees. 310, 315; Utah, Kev. Stats., sees. 3953, 3954; Washington, Ballinger's Codes, sec. 6355. No. 1507. — Petition — Distribution for. [Title of Court and Estate.] To the Honorable, the said Superior Court of the City and County of San Francisco, State of California: The petition of M. /., the administratrix of the estate of T. J., deceased, respectfully shows: That your petitioner was appointed such administratrix by the order of this court on the fifteenth day of May, 190^, and on the sixteenth day of May, igo6, she duly qualified as such administra- trix, and thereupon entered upon the administration of the estate of said deceased, and has ever since continued to administer said estate. That on the third day of June, 190^, your petitioner duly made and returned to this court a true inventory and appraisement of all the estate of said deceased which had come to her possession or knowledp^e. That on the seventeenth day of May, 100^, your petitioner duly published notice to creditors to present their claims against the said deceased, in the manner and for the period prescribed by this court. That more than one year has elapsed singe the appointment of vour petitioner as such administratrix, and more than ten months have expired since the first publication of said notice to creditors. That on the sixteenth day of June, 1904, your petitioner filed her accounts as such administratrix, which said accounts, after due hearing^ and examination, were finally settled. That all the debts of said deceased and of said estate, and all the expenses of the administration thereof thus far incurred, and all taxes that have attached to or accrued against the said estate, have been paid and discharged, and said estate is now in a con- dition to be closed. That the residue of the said estate now remaining in the hands of vour petitioner is fully set forth and described in the schedule marked "A," hereunto annexed and made a part of this petition. That the tvhole of said estate is common property, it having been acquired by said deceased after his marriage to your pe- titioner. That the said T. /. died intestate, in the city and county of San Francisco, on the seventeenth day of April, 1903, leaving him sur- 884 Ndw Book of Forms. viving your petitioner, his zvidozv, now aged forty-one years, re- siding at said city and county; and J. J., now aged twenty-four years, residing at the city of Sacramento, W. J., now aged nine- teen years, C. J., now aged seventeen years, and E. J., now aged fifteen years, residing zcith your petitioner, at said city and county of San Francisco, the children of said deceased and of your peti- tioner, and his only descendants. That the said petitioner is entitled to the one-Jialf of the residue of said estate, and the said descendants of said deceased are en- titled to the other half of said residue of said estate. SCHEDULE "A." Personal Property: Cash $1,302 02 Real Property: [Here insert full description.] Wherefore your petitioner prays that the administration of said estate may be brought to a close, and that she may be discharged from her trust as such administratrix. That, after due notice given and proceedings had, the estate re- maining in the hands of your petitioner as aforesaid may be dis- tributed in the proportions and to the said parties entitled thereto as aforesaid, to wit, the one-half of the said residue to the said sur- viving wife, and the other half of the said descendants of the said deceased, or that such other or further order may be made as is meet in the premises. And your petitioner will ever pray, etc. NOTE. — An executor or administrator may petition for distribution upon the settlement of his final account, or thereafter: Cal., C. C. P., sec. 166.5; Alaska, Codes, pt. 4, c. 87, sees. 872-886; Arizona, C. C, pars. 1896-1898; Idaho, C. C. P., sees. 4275-4277; Montana, C. C. P., sees. 2843- 284.5; Nevada, Comp. Laws, sees. 3001, 3002; New Mexico, Comp. Laws, sees. 193.5-2094; North Dakota, Probate Code, sees. 6509-6516; South Dakota, Probate Code, sees. 302-331; Utah, Eev. Stats., sees. 3953, 3954; "Washington, Ballinger's Codes, sec. 6355. No. 1508. — Petition for Continuation of Administration. [Title of Court and Estate.] To the Honorable, the Superior Court in and for the County of Napa, State of California: Now comes the executor and all the legatees and devisees named in the last will of the said A. B., deceased, and petition the court to have the administration of the estate of said deceased continue for a longer period of time than that designated in said P^ITION. 885 will for the reason that the time designated in said will is June j, Jpo6, and it will be injurious to the said estate and to the said beneficiaries to have the said administration brought to a close at the date therefor designated. NOTE.— California, C. C, sec. 1670. It seems that notwithstanding an order is made continuing the time for settlement, that any heir, devisee or legatee may assert his rights to payment under Id., sec. IG.'jS, after the lapse of four months from the issuing of letters; and the fact that they signed the petition to con- tinue the time for closing the administration does not estop them from insisting upon the immediate payment of their share of the estate. If the heirs at law are preferred under the will to the legatees and devisees, the situation would not be the same. No. 1509. — Petition for Decree that Homestead is Vested in Surviving Wife. [Title of Court and Estate.] To the Honorable, the Superior Court of the County of Sierra, State of California: The petition of A. B. C. states that A. L. C. and petitioners were, on the jJ day of June, igoo, husband and wife. That on the said ?rf day of June they owned in common all that land described as follows, to wit: [Description.] That on said jJ day of June petitioner and her husband, A. L. C, declared, executed and acknowledged, and recorded in the re- corder's office of the said county of Sierra, in manner and form as is by law required, a homestead upon said property hereinabove described, and the said homestead has never been conveyed or abandoned by either your petitioner or her said husband. That on the loth day of June, 190^, the said husband of peti- tioner died in said county of Sierra. That at the time of his death the said property stood of record, and now stands of record in the name of the said A. L. C. Wherefore, petitioner prays for a decree establishing the fact that said premises were, on June 5, igoo, the community property of petitioner and her said husband. That said homestead was se- lected and recorded as by law required, prior to the death of the said A. L. C. on June 10. 1905, and that the title to said premises vested in petitioner on the loth day of Ju}ie, 190 j, bv reason of the death of her husband, the said A. L. C. as aforesaid. NOTE. — Such petition may also be filed by a purchaser of the sur- vivor's title. If the facts are established, the decree may be recorded and it becomes thereby a judicial record of the established facts: Cal. C. C. P., sec. 1723; Idaho, C. C. P., sec. 4281; Montana, C. C. P., sec. 886 New Book oi? Forms. 2930; New Mexico, Conip. Laws, sees. 193.5-2094; North Dakota, Probate Code, sec. 63S9; South Dakota, Probate Code, sees. 153-166; Utah, Eev. Stats., sec. 3572; Wyoming, Eev. Stats., sec. 4556. No. 15 10. — Petition by Mentally Incompetent Person to be Adjudged Mentally Competent. [Title of Court and Cause.] To the Honorable, the Superior Court in and for the County of ' Napa: The petition oi A. B. states that on June 3, ipoj, he was, by the judgment of the said superior court, adjudged to be a mentally incompetent person. That he is now restored to mental capacity and competency, and he prays the court for an order judicially determining that he is now restored to mental competency, or capacity. . NOTE. — The court appoints a day for the hearing before the court. The petitioner may demand a jury. Notice is given to the guardian, if any, and to the husband or wife if there is one, and to the father or mother if living in the county. The petition may be contested: Cal. C. C. P., sec. 1766. See Id., sec. 1767, for definition of the words "in- competent," "mentally incompetent" and "incapable": Alaska, Codes, pt. 4, c. 88, sees. 887-917; Arizona, C. C, par. 1987; Idaho, C. C. P., sec. 4356; Montana, C. C. P., sec. 2973; New Mexico, Comp. Laws, sees. 1896- 1934; North Dakota, Probate Code, sec. 6527; South Dakota, Probate Code, sec. 382; Wyoming, Bev. Stats., sec. 4895. No. 151 1. — Petition — Appointment of Guardian. [Title of Court and Estate.] To the Honorable, the Superior Court of the City and County of San Francisco, State of California: The petition of M. J. respectfully shows : That your petitioner is the mother of W. J., C. J. and B. /., minor children of T. J., late of said city and county, deceased. That said minors have no guardian legally appointed by will, and are residents of said city and county, and have estate within said city and county which needs the care and attention of some fit and proper person. That said estate consists partly of cash and partly of undivided interests in a lot of land in said city and county, inherited by said minors from their late father, and lately distributed to them by a decree of the superior court of said city and county, by which said decree the administratrix of the estate of said deceased was di- rected to pay and deliver to the guardian of said minors the cash Petition, 887 and real estate belonging to them [or state such other facts as show the necessity or convenience of a guardian]. That, therefore, it is necessary and convenient that a guardian be appointed to the persons and estates of said minors. That said W. J. is of the age of nineteen years, said C. J. of the age of seventeen years, and E. J. of the age of fifteen years ; and said minors are, at present, under the care of your petitioner. That the only relatives of the said minors residing in said city and county of San Francisco are F. W. and H. W., uncles of said minors. Wherefore, your petitioner prays that your honor nominate and [or, if the minors are above the age of fourteen years, as in this case, and have nominated their guardian, then omit the words "nominate and," and say simply] appoint your petitioner, a fit and proper person, or such other Ht and proper [or if the^ minors be above the age of fourteen years, omit the words "tit and proper"] person as said minors may hereinafter nominate [or if said minors are under fourteen years of age, then omit the words "as said minors may hereinafter nominate," and say, "cis to your honor may seem fit and proper"] a guardian of said minors, and that your" honor cause such notice to be given to the said F. W. and H. W., as your honor shall, on due inquiry, deem reasonable,. And your petitioner will ever pray, etc. NOTE.— California, C. C. P., sec. 1747; Alaska, Codes, pt. 4, c. 88, Bees. 887-917; Arizona, C. C, par. 1954; Idaho, C. C. P., sec. 4339; Mon- tana, C. C. P., sec. 2950; Nevada, Comp. Laws, sees. 559, 566; New Mexico, Comp. Laws, sees. 1434-1477; North Dakota, Probate Code, sec. 6537; Oregon, Codes and Statutes, sec. 5259; South Dakota, Probate Code, sec. 366; Utah, Rev. Stats., see. 3994; Washington, Ballinger's Codes, sec. 6395; Wyoming, Bev, Stats., sec. 4866. No. 1512. — Petition for Appointment of Guardian for Incom- petent Person. [Title of Court and Estate.] To the Honorable, the Superior Court of the City and County of San Francisco: The petition of A. D. shows to the court that he is the oldest son of C. D. and a resident of said city and county. That the said C. D., over eighty years old, is an invalid, and for those and other reasons his mind is greatly impaired, so that he is mentally in- competent to manage his property or to care for himself. That he owns nine houses and lots, in said city and county, yielding a net income of tzvelve hundred dollars a month, and it is necessary that a guardian be appointed to manage said property. 8SS New Book of Forms. Wherefore petitioner prays for an order appointing him guard- ian of his father's estate. NOTE. — When a person is insane or mentally incompetent to man- age his property, a superior court may, after five days' notice of the application, appoint a guardian for him. If such person is able to at- tend he must be present at the hearing: Cal. C. C. P., sec. 1763; Alaska, Codes, pt. 4. c. 88, sees. 887-917; Arizona, C. C, par. 1984; Idaho, G. C. P., sec. 435:^; Montana, C. C. P., sec. 2970; Nevada, Comp. Laws, sec. 572; New Mexico, Comp. Laws, sees. 3 896-1934; North Dakota, Probate Code, sec. 6552; Oregon, Codes and Statutes, sees. 5267, 5270; South Dakota, Probate Court, sees. 379-382; Utah, Eev. Stats., sec. 4000; Wash- !:• -Ion, Ballinger's Codes, sec. 6424; Wyoming, Eev. Stats., sees. 4879- 4897. No. 1513. — Petition by Guardian for an Order to Mortgage Real Estate. [Title of Court and Estate.] To the Honorable, the Superior Court of the County of Napa: The petition of A. B. states that he is the qualified and acting guardian of the estate of C. D., a mentally incompetent person. That the said C. D. is the owner of that tract of land and im- provements in said county of Napa, described as follows, to wit : [Description.] That on June 8, ipoo, this court adjudged the said C. D. to he mentally incompetent, and your petitioner was appointed guardian of his estate. That petitioner took charge of the said property, and immediately ascertained that it was valuable, and an offer has been made by a reliable person to rent it for a term of five years for farming purposes, at a yearly rental of ^7,^00. That the said C. D. had, during the years 1903, 1904, iQOj, attempted to farm said land but on account of his mental incapacity became in- debted in the sum of $1,450, including taxes on the land. That the creditors of said C. D. are pressing petitioner for payment and he finds it impossible to pay them unless said land is sold or mort- gaged. That petitioner has ascertained that the said C. D. (he having no family) can be well supported on a net income of $40 a month. That petitioner has ascertained that he can borrow ^7500 at six per cent a year for a term of three years on mortgage of said land. That the cost of obtaining said mortgage, recording, and the costs of this petition will be $50. That the rent of said premises for three years will net $3,600, and after deducting $1,440, expended for the care of said C. D., there will remain $2,160 to apply to the payment of the principal of said mortgage and interest and a balance of $390, which will be amply sufficient to meet any prob- Pettition. 889 able defidency in the estimated cost of maintenance during said three years. Wherefore, petitioner prays for an order authorizing him, as guardian of the said C. D., to mortgage said property for the amount, interest and purpose in tliis petition stated. NOTE. — Under the facts stated the court has authority to ^rant the prayer of the petition: Cal., C. C. P., sec. 1770. This construction puts stress on the word "manage" as used in the statute: Arizona, C. C, par. 1990; Idaho, C. C. P., sec. 4359; Montana, C. C. P., sec. 2982; Nevada, Comp. Laws, sec. 576; New Mexico, Comp. Laws, sees. 1935- 2094; North Dakota, Probate Code, sec. 6453; Oregon, Codes and Stat- utes, 8CC. 5276; South Dakota, Probate Code, sees. 408-411; Utah, Rev. Stats., sec 4007; Washington, Ballingex's Codes, see. 6405; Wyoming, Eev. Stats., sec 4900. No. 1514. — Petition of Guardian that He may Assent to Par- tition of Land- [Title of Court and Estate.] To the Honorable, the Superior Court in and for the County of Alameda: ^ The petition of A. B., guardian of C. D., a minor, shows that said minor is the owner in fee of an undivided one-third of all that tract of land described as follows, to wit: [Description.] That an action has been brought by his cotenants, E. F. and G. H., in the superior court of said Alameda county, against said C. D., for partition of said land among the said cotenants. That your petitioner believes that said land may be so divided that each owner will be benefited thereby. Wherefore he prays for an order authorizing him to assent to the petition prayed for in said action. A copy of the complaint in said action is attached hereto and is referred to and made a part of this petition. NOTE. — Before granting the partition the court must order the clerk to mail notices of the application to all the known relatives of the ward residing in the county where the proceedings are had, at least ten days before the hearing, which must be in open court: Cal. C. C. P., sec. 1772. The same order may be made by agreement between a guardian and the cotenants of his ward without action, upon partition and after the same notice: Id.; Arizona, C. C, par. 1992; Idaho, C. C. P., sec. .S461; Montana, C. C. P., sec. 2984; Nevada, Comp. Laws, sec. 99, Stats. 1S99, p. 74; New Mexico, Comp. Laws, sees. 1935-2094; North Dakota, Pro- bate Code. sees. 6517-6523; South Dakota. Probate Code, sec. 387; Utah, TJov. Stats., sec. 4012; Washington, Ballinger's Codes, sec. 6417; Wy- oming, Eev. Stats., sec 4902. 890 New Book of Forms. No. 15 15. — Petition for Writ — Habeas Corpus. [Title of Court and Cause.] To the Honorable W. T. W., Judge of the Superior Court of the City and County of San Francisco, State of California: The petition of R. H. respectfully shows : That he, the said R. H., is unlawfully imprisoned, detained, confined, and restrained of his liberty by /. McD., sheriff of the city and county of San Fratuisco, at the county jail, in the city and county of San Francisco, in the state of California. That the said imprisonment, detention, confinement, and re- straint are illegal ; and that the illegality thereof consists in this, to wit : Your petitioner is an attorney at law, in good standing and duly admitted to practice in the supreme court of the state of California. That on December 10, 1904, at said city and county, he appeared before a certain judge of the said superior court, to wit. Judge B., requesting the said judge {state the facts]. Wherefore your petitioner prays that a writ of habeas corpus may be granted, directed to the said /. McD., sheriff as aforesaid, ] commanding him to have the body of said R. H., before your ] honor at a time and place therein to be specified, to do and receive I what shall then and there be considered by your honor, concern- ing said R. H., together with the time and cause of his detention, and said writ; and that he, said R. H., may be restored to his liberty. NOTE. — In California a person unlawfully imprisoned or restrained of his liberty, under any pretense, may prosecute a writ of habeas cor- pus, to inquire into the cause of such imprisonment or restraint. The application may be signed by the prisoner, or by any person on his behalf, and must specify: 1. That the person is restrained of his liberty, th officer or person by whom he is confined or restrained, and the place where, and naming all the parties, if known, or describing them, if not known; 2. If the restraint is alleged to be illegal, the petitioner must state in what the alleged illegality consists; 3. The petition must be verified by the party making the application: Pen. C, sees. 1473-1474; AJaska, Codes, pt. 4, c. 57, sec. 569; Arizona, C. C. P., par. 1219; Idaho, Pen. C, sec. 5741; Montana, Pen. C, sec. 2741; Nevada, Comp. Laws, sees. 3745, 3746; New Mexico, Comp. Laws, sec. 2783; North Dakota, C. C, sec. 8650; Oregon, Codes and Statutes, sec. 621; South Dakota, Probate Code, sec. 771; Utah, Rev. Stats., sec. 1064; Washington, Bal- linger 's Codes, sec. 5816; Wyoming, Eev. Stats., sec. 5464. No. 15 16. — Petition — Relief Against Forfeiture of Lease. [Title of Court and Cause.] To the Honorable W. T. W., Judge of the Superior Court of the City and County of San Francisco, State of California: Petition. 891 Your petitioner respectfully represents that on the tenth day of August, igo6, an action was commenced before your honor, in said court, entitled W. B. v. S. S., your petitioner; that said ac- tion was brought to [here insert the facts of the action stated in the coiiiMaiiit] : that such [jroceedings were thereafter had that by the judg-ment of said court, entered on the twentieth day of said month of /iugust, the lease under which the petitioner held the premises described in the complaint was, by the judgment of said court, declared forfeited, and petitioner was, on the day following, by the sherifT of said county, and the order of said court, turned out of said premises, and he, at the same time, placed said plaintiff in possession thereof; that the lease under which petitioner held said premises had ten years to run from said tenth day of August; that when plaintiff made demand for the rent of said premises, as dcsciibed in the complaint, petitioner was absent from said prem- ises, but his clerk, A. A., Esq., was in possession as his agent; that the demand for rent or surrender of possession described in the complaint and proved at the trial was served on said agent at a time when petitioner zvas absent from the state of California on business; that said agent did not inform petitioner of said demand, and petitioner did not know that said demand had been made until after said action zvas commenced; that zvhen he re- turned to said state this action had been commenced, and peti- tioner, before the trial, tendered to plaintiff the full amount due for rent and all the costs he had been put to, and fifty per cent thereon in addition; that petitioner erected on said premises, under the terms of his lease, outhouses and a stable, costing over one thousand dollars, has put a new roof on the dzvelling-house there- on at an expense of seven hundred dollars, and has sunk a zvcll thereon, costing three hundred and tzvelve dollars; and all said expenditures have been made zvithin one year last past, and under expectation of enjoining said premises until the expiration of said leas^, cus covenanted therein; that the forfeiture of said lease has worked a great hardship on petitioner, zvho is over seventy-eight years of age, and he avers that his entire fortune has been ex- pended on said premises as aforesaid; that he Jias a wife and seven children, all under fifteen years of age, depending on him for support, and his entire family and furniture zvere, by saict sheriff, turned out of said premises on the street at the hour of ten o'clock P. M. Wherefore, petitioner prays that an order may be made rc^ storing him to his former estate. (All courts.) NOTE.— California, C. C. P., sec. 1179; Idaho, C C. P., see. 3990) Montana, C. C. P., see. 2099; North Dakota, C. C^ sec. 4970; Utah, Be<- Stats., sec. 358-i. 892 New Book of Forms. No. 1517. — Petition to Become Sole Trader. [Title of Court and Cause.] 1. The petition of A. J. respectfully represents and shows to this honorable court that she is a married woman, and is the wife of T. J., and is now, and for six months and upwards next preceding the thirtieth day of September, 1906, has been resid- ing with her said husband in said city and county of San Fran- cisco, state of California. 2. That your petitioner is desirous of availing herself of the benefits of 'Title XTI, Part III of the Code of Civil Procedure of the state of California, and obtain a judgment and order of this court, authorizing her to carry on and transact business in her own name and on her own account in the city and county of San Francisco. 3. That your petitioner makes this application in good faith, ■ to enable her to support herself and others dependent upon her, viz., her Hve children ; and that the following are the names of her children and the persons dependent upon her for their sup- port and maintenance: A. }., aged fourteen years, W. J., aged tzvelve years, F. J., aged ten years, A. J., aged eight years, B. J., aged five years. 4. The reason of insufficient support from her said husband is as follows: Her said hnsband is sickly, and troubled tvith a chronic disease, to wit: "Fleniorrhoids" rvhich renders him unfit to work at his trade a great part of the time, he being a pile- driver by trade. 5. That the reason a divorce is not sought by your petitioner from her husband is as follows: There is no legal ground for a divorce. 6. The nature of the business your petitioner proposes to con- duct and carry on is that of buying and selling goods, wares, and merchandise, and keeping a general variety store, and the place of such business is in the city and county of San Francisco, and the capital to be invested therein by your petitioner is three hun- dred dollars, and the source from which the same is derived is as follows: Money loaned on mortgage security by your petitioner of one R. W. 7. That of the moneys to be used in said business, not more than five hundred dollars has come, either directly or indirectly, from the community property, or of the separate property of her husband, and that this application is not made with any view to defraud, delay, or hinder any creditor or creditors of her husband, but is made in good faith for the purpose of enabling her to sup- port herself and children as aforesaid. Petition. 893 \VTierefore, your petitioner prays that on the hearing of this petition and application, and after due notice given and published, a judgment and order be made by this honorable court authoriz- ing her to carry on business in her own name, and on her own account as such sole trader. NOTE.— California, C. C. P., sec. 1815; Idaho, C. C. P., sec. 38S8; Montana, C. C. P., sec. 2292; Nevada, Comp. Laws, sees. 546-549. No. 1518. — Petition — Dissolution of Corporation, [Title of Court and Cause.] To the Honorable the Superior Court of the City and County of San Francisco, State of California: The petition of the M. G. Company represents and alleges : I. That it is a corporation duly incorporated on the tenth day of October, ipoj, and is still existing, under and by virtue of the laws of the state of California, and that its principal place of business is in the city and county of San Francisco. II. That at a meeting of the stockholders and members of said corporation held for such purpose, the dissolution of said corpora- tion was resolved upon by over two-thirds (2-3) vote of all the stockholders and members of said corporation. III. That all claims and demands against said corporation have been fully satisfied and discharged. IV. That the total number of shares of the capital stock of said corporation is ten thousand (10,000). That nine thousand tzvo hundred and fifty shares of the said capital stock of said cor- poration was duly represented at said meeting, called as afore- said, at the office of said company, in said city and county, for the purpose of the dissolution of said corporation, on the )iinth day of June, igo^, and that the vote of all the stockholders at said meet- ing was as follows : Nine thousand one hundred and seventy-five shares represented by stockholders as aforesaid were for dissolu- tion, and seventy-five shares were against dissolution. V. That the board of directors or trustees of said corporation consists of five, all stockholders thereof, and residents of said city and county of San Francisco, and their names are as fol- lows: /. R., R. S., J. J., P. B. and S. R., and that said persons so named as trustees aforesaid have had the sole management of the affairs of said corporation for ten months next preceding this application, and are now such managers. Wherefore, your petitioners pray that your honor will order this petition to be filed with the clerk of this court, and that the clerk give notice of the nature of this application, not less than S94 New Book of Forms, thirty nor more than fifty days, and of the time and place of hearing- the same, by publication in some newspaper pubHshed in the city and county of San Francisco. That after the time of publication has expired your honor may, upon five days' notice to any persons who have filed objections within the time pre- scribed by section 12^1, C. C. P., or without notice, if no objec- tions have been filed, proceed to hear and determine this appli- cation, and after hearing adjudge and declare said corporation dissolved, in accordance with the law in such cases made and provided. NOTE.— California, C. C. P., sees. 1228-1234; Arizona, C. C, par. 772; Idaho, C. C. P., sec. 3835; Montana, C. C. P., sec. 2191; Nevada, Comp. Laws, sec. 887; New Mexico, Comp. Laws, sec. 435; North Dakota, C. C, sees. 5762-5766; Oregon, Codes and Statutes, sec. 5068; South Dakota, C. C, sec. 638; Utah, Rev. Stats., sees. 3661, 3662; Washington, Bal- linger's Codes, sec. 4275; Wyoming, Rev. Stats., see. 3181. No. 1 5 19. — Petition of District Attorney for Citation — Inher- itance Tax. [Title of Court and Estate.] The petition of H. L. B. respectfully shows: That he is the district attorney of the city and county of San Francisco, Cali- fornia. That on or about the ^th day of April, IQ04, the above-named S. D. died testate at the city and county of San Francisco, state of California and was at the time of his death a resident of the state of California, and left estate there. That on the i^th day of May, A. D. IQ04, J. C. R. was ap- pointed executor of his will and letters testamentary were issued to him. That he qualified and he is now the executor of said estate. That there is property belonging to the estate of said deceased, within this state, or subject to its laws, which was distributed by an order of said court in said estate to J. D., residing at Gall- way, state of New York, which exceeds in value the sum of five hu7idred dollars, is not exempt from execution and is subject to taxation under the laws of the state of California to establish a tax upon inheritances, bequests and devises. Petitioner further represents : That the treasurer of said city and county of San Francisco has notified him in writing of the failure of /. D., who is the person liable therefor to pay said tax, and that no part thereof has been paid, and is now due this state ; and your petitioner has probable cause to believe that said tax still remains unpaid. Petition. 895 Wherefore your petitioner prays : That a citation issue to said /. D., who is now in said city and county of San Francisco citinj:]f her to appear before this court at a day designated therein, and show cause why said tax should not be paid. No, 1520. — Petition for Appointment of Appraiser — Inher- itance Tax. [Title of Court and Cause.] To the Honorable, the Superior Court of the city and county of San Francisco, State of California: The petition of H. IV. respectfully shows: That he is a resi- dent of said city and county, a taxpayer, and a citizen of the United States, and as such is interested in having a tax herein- after referred to paid. That the above-named S. D. died testate in the state of Cali- fornia on or about April 5, A. D. 1^04, and he was at the time of his death a resident of the said city and county in the state of California. That on the i^th day of May, 1Q04, the superior court of said city and county, by its order appointed /. C. R., executor of the will of said deceased, and on the i^th day of May, A. D. 1904, he qualified as such executor and letters testamentary were then issued to him and he is now the qualified and acting executor of said estate. That said deceased died possessed of certain prop- erty liable to be taxed under the laws of the state of California relating to gifts, legacies, inheritances, bequests, devises, succes- sions and transfers. That the value of the property subject to said tax is uncertain, and before said tax can be collected, it will be necessary to ascertain the value of said property; and a de- scription of the property above referred to is hereto attached, re- ferred to, marked Exhibit "A," and made a part hereof. [Par- ticularly describe the property.^ Wherefore petitioner prays for an order appointing an ap- praiser to ascertain and report to the court the value of the prop- erty described in said Exhibit "A." NOTE.— Act of March 20, 1905; Stats., p. 341, sec. 14. No. 1 52 1. — Petition of Treasurer's Attorney — Inheritance Tax. [Title of Court and Cause.] The petition of R. H. respectfully shows: That he is an at- torney at law admitted to practice in all the courts of the state of California. 896 New Book of Forms. That on the loth day of July, A. D. ipo^, H. B., then treas- urer of the county of Butte, appointed petitioner a special attor- ney to prosecute, jnder the laws of the state of California, estab- lishing a tax on gifts, legacies, inheritances, bequests, devises, successions and transfers, proceedings against persons interested in property liable to said tax. That on or about April 5, 1905, the above-named testator died testate at said city and county, and was at the time of his death a resident of the state of California, and left estate there. That on the isth day of May, A. D. 1904, J. C. R. was by said court appointed executor of his estate and letters testamentary were issued to him. That he qualified and he is now the executor of the last will of said deceased. That there is property belonging to the estate of said deceased, within this state, or subject to its laws, which was distributed to /. D. residing at Gallway, New York, which exceeds in value the sum of fiz'e hundred dollars, is not exempt from execution and is subject to taxation under the laws of the state of California to establish a tax upon gifts, legacies, inheritances, bequests, de- vises, successions and transfers. Petitioner further represents : That H. B., treasurer of the said city and county, has notified him in writing of the failure of /. D., the person liable therefor, to pay said tax and that no part thereof has been paid, and is now due this state ; and your peti- tion has probable cause to believe that said tax still remains unpaid. Wherefore your petitioner prays : That a citation issue to /. D. citing her to appear before this court at a day designated therein, and show cause why said tax should not be paid. NOTE.— Act of March 20, 1905; Stats., p. 341, sees. 17, 18, 23. EETURN— ACCOUNT— REPORT. No. 1522. — Report (Special) of Executor Accompanying An- nual Account — Particular. [Title of Court and Estate.] To the Honorable, the Superior Court of the City and County of San Francisco: J. C. R., the executor of the last will of S. D., deceased, has this day filed a full account of his administration, as directed by sections 1622, 1628 and 16 ji, of the Code of Civil Procedure. RjETURN — Account — R£;port. 897 At the same time he has filed a full report of his administration, tog'ether with vouchers for all charges, debts, claims and expenses which he has paid. NOTICE TO CREDITORS. The time for presentation of claims expired on March ^^, 1905. On April 21st, a decree was entered showing that due notice to creditors has been given. SPECIAL ADMINISTRATION AND CLERICAL ASSISTANCE. During his special administration he took possession of all the personal property described in the inventory and appraisement. He begs leave to refer to his final account and report of the spe- cial administration and make it a part of this report. For the reasons in that report stated it was necessary for him to have assistance entirely capable and trustworthy ; therefore he employed W. B. R., and promised to pay him for services as his clerk in the care and management of this estate under his general letters. He commenced work on April 6, iQO/f, and the executor has paid him $200 a month from April 6, IQ04, to April 6, ipo^, amount- ing to $2,400, which was a necessary expense in the care and management of the estate, and the executor now requests the court to allow that amount per month and continue it until final dis- tribution. APPRAISEMENTS AND INYENTORIES. Two inventories and appraisements have been made of the B., D. and M., K. R. Ranch. The first by appraisers residents of the county in which the land is situated. It was hurried through w'ith such unusual expedition, and the value of the decedent's one- third interest was so much lower than his estimates, that the ex- ecutor caused a reappraisement by the appraisers appointed to appraise San Francisco property. They made a thorough exam- ination and raised the value of the estate's interest from $20,p/l to $iOf),6yc), which is now thought to be approximately its true value. Resident appraisers were appointed to appraise the estate's in- terests in lands in Butte and Sutter counties, which appraise- ments appear to be altogether fair. MISTAKE IN INVENTORY. The H. and /. W. O.'s note was appraised at $800. It was a mistake of the appraisers. A credit of $100 was indorsed on it by deceased. Its true value is $yoo only. PROPERTY DISCLOSED SUBSEQUENT TO INVENTORY. Found in safe $1.00 not in inventory. Found in old book $2.^0 gold and yo-ioo. Found in C. S. D. Company $8,_^^4.qj not in inventory. Found //. note for $J00 not in inventory. Paid. New Forms — 57 898 New Book oe Forms. debts due the estate collected— bonds, notes, etcc A. S. B.'s note for $1,300 and interest. Paid. [Other amounts collected.] CHANGE IN FORM OP PROPERTY DESCRIBED IN INVENTORY. An undivided 1-24 interest in C. S. v. L. C, judgment ha.s been merged into S. B. Company stock and upon it a 30% divi- dend of $c)6o.50 has been paid. English consols amounting in total to 14,400 pounds that were mentioned in inventory as having no coupons were exchanged for other consols of same amount that bear 2 pounds 10 shillings interest. This had to be done in order to collect coupons due on said consols. Judgment for $180.03 has been obtained in the justice's court of the city and county of San Francisco against A''. G. on the two promissory nptes described in the inventory. Judgment en- tered November 4, 1904. The judgment is a lien subsequent to a mortgage for less than the property is worth. The property is for sale, and when sold the title will not pass with tlie judgment here unsatisfied. ESTATE OF T. B. P. The executor has presented a claim against the estate of T. b. P. for the amount of the promissory note described in the in- ventory to wit, $1,000, which was allowed. Since then he has ascertained that after family allowance and expenses of adminis- tration are paid nothing will remain for the creditors. PERSONAL PROPERTY SOLD. The only personal property sold was 713 sacks of zvheat, liable to injury by dampness and heat, etc. It was sold by order of court at private sale for $1,051.60, the price for the best wheat in the market. DEEDS OF REAL ESTATE. The court ordered the executor to make deeds to one H., and to O'K. and wife, and /. /., in compliance with written contracts to convey, executed by deceased. Deeds have been executed to A. H., and M. O'K. and wife, to lots in San Francisco, Blocks 134, J ^6, 157, for which he has received $788.20, which was the bal- ance due on the contract price. The deed to /. has not been executed. CLAIMS AGAINST C. ESTATE. He presented a claim for $20,000 principal, secured by mort- gage on land in Stanislaus county. The claim was approved. The principal and interest amount to $25,334.46. Action has been commenced to foreclose the mortgage. The mortgage is a first lien, and the security is ample. Return — Account — Report, 899 Another claim for $1,200 on a promissory note was presented and allowed against the same estate. It is thought that after the expenses of administration are paid that at best the original amount without interest will be paid. THRASHER MORTGAGE. An action was commenced in Butte county to foreclose the G. T. et al, mortgage for $17,600 principal, and $10,751 interest. The total amount due was received and the mortgage satisfied of record. THE L. MORTGAGE. An action was commenced in Kings county to foreclose the C. G. L. mortgage for $12,000 principal and $^,951.84. interest. Ac- tion is now pending. L. C. AND I. COMPANY MORTGAGE. The mortgage of L. C. and /. Company, $25,000 and interest, has been paid and the mortgage released. OTHER ACTIONS ENDING. In the following cases, numbered i, 2, 5, 4, 5, 6, 7, pending in the superior court of Kings county, the estate has an undivided one-third interest. [Title of Court and Cases.] Those cases are all ready for trial and involve valuable water risrhts useful for the B. D. and M. Ranch, described in the in- ventory. OTHER ACTIONS. Estate Datns. G. E. B. j No. 93852. M. G. S. et al. ) ^'P^' ^°- Superior Court, San Francisco. [Title of Court and Cause of Other Actions.] G. E. B. V. /. C. R., Executor. This action was brought to annul a promissory note for $10,000 (described in the inventory) by plaintiff, to S. D., deceased, upon the ground that it did not represent an indebtedness, but was made to secure deceased against any loss he might sustain in case 900 New Book of Forms. a certain deed was not executed; a deed in which both plaintiff and deceased were interested in having executed. The case was tried in the superior court of the city and county of San Francisco, Department No. 4, and judgment rendered for plaintiff. The attorneys for the estate have not yet advised the executor respecting future proceedings in the matter. LETTERS OF ADMINISTRATION IN THE STATE OF NEVADA. Legal proceedings in the state of Nevada make it necessary to take out letters of administration there. The only matter in- volved is a claim amounting to about $^4,86^. jO in which de- ceased and Mr. G. E. B. have common interests. The matter .is still pending. CLAIMS PRESENTED. The following is a statement of claims presented and allowed up to and including the 2^th day of March, 1905: Voucher No. 8. P. R., rent $iOj 75 Voucher No. 7. B. L. F., services §00 00 Voucher No. 6. G. G., services 100 00 [And other claims. Total, $16,510.20.] CLAIMS PAID. All of the foregoing claims have been paid, except — H. & M., balance ^2,700 00 J. C. R., executor 6,000 00 Total, $8,100 00 The executor's claim of $6,625.00 was on March 77, 7905, pre- sented for approval to the judge of this court, and co])ics were served on the attorneys for interested parties. No opposition to the approval beinj: made, the claim was on April 21, 1905, ap- proved for $6,000, the balance ($625) being barred by the statute forbidding payment of claims within the statute of limitations. REJECTED CLAIMS. On March 15, 1905, C. D. V. presented a claim for $750 on account of alleged services rendered deceased in negotiating the sale of certain judgments of record in the state of Nevada. It was rejected on March 14, 1905. DEBTS OF THE ESTATE. Except as aforesaid, there are no debts except taxes and expenses of administration. Return — Account — Report. 901 estate's money at interest. Since the executor was appointed, he caused from time to time $4jo,joy.20 of the money on hand to be deposited in the Bank of California, for which the estate receives three per cent a year interest from the date of deposit. The remainder of the estate's money to the amount of $2/,- pO/'.SQ is on deposi* in banks, without interest except one deposit of $2,2^0.26, which draws interest at the rate of j 1-4 per cent. CONTEST OF A CODICIL. After the will of iSqS was admitted to probate a writing was discovered which the executor believed, and now believes, to be in the deceased's handwriting, and a codicil to said will. He caused it to be filed. It was contested and all parties appear to be ready for trial. NOTE.— California, C. C. P., sees. 1622, 1628; Arizona, C. C, para. 1854, 1860; Idaho. C. C. P., sees. 4242, 4248; Montana, C. C. P., sees. 2780, 2786; Nevada, Comp. Laws, sees. 2970, 2971: North Dakota, Pro- bate Code, sees. 6486. 6492; Oregon, Codes and Statutes, sec. 1199; South Dakota, Probate Code, sees. 272. 278; Utah, Rev. Stats., sees. 3941, 3943; Washington, Ballinger's Codes, sees. 6315, 6321. No. 1523. — Report (Brief) — Administratrix Accompanying Account. [Title of Court and Estate.] To the Honorable, the (or the Judge of) said Superior Court of the City and County of San Francisco, State of Calif orma: M. J., the administratrix of the estate of T. J., deceased, on this, the sixteenth day of Jime, IQ06, respectfully renders the following report of her administration : That letters of administration of said estate were issued to her on the sixteenth day of May, ipo6. That immediately after her appointment she caused notice to creditors to be published in the D. E. B., a newspaper published in said city and county. That, within ten months after the first publication of said no- tice, four claims against the said deceased, accompanied by proper affidavits, and supported by satisfactory vouchers, were presented to the said administratrix, and allowed by her and the judge of this court, the amounts, the dates of presentation and allowance, and all the particulars of which claims are contained in the state- ment of debts annexed to said administratrix's annual account, this dav rendered. 902 New Book of Forms. That another claim was also presented, but rejected, and no suit has ever been brought against said administratrix therefor. As will be seen by said account and the statement annexed, tJie bal- ance of money now in the hands of said administratrix is the sum of $5.'795-50, and the claims allowed amount to the sum of $2,4^0, and the expenses of closing said estate amounting only to the sum of $i,igf).48 ; there is, therefore, money sufficient in my hands to pay all the debts and expenses, and said administratrix will soon be able to bring her administration to a close. Said administratrix prays that the judge of [or said] court ap- point a day of a term of said court for settlement of said account, and that on the day appointed, or on such subsequent day as the hearing may be adjourned to, after the appointment by said court of some person to represent the minors interested in the said estate who have no legally appointed guardian, it being first proved to the satisfaction of said court that due and legal notice of the time appointed for the settlement of said account has been given, said account be settled and allowed by said court. And said administratrix will ever pray, etc. NOTE.— California, C. C. P., se3s. 1622, 1628, 1631. No. 1524. — Report — Referee of Account. [Title of Court and Estate.] In pursuance of an order of this court, made and entered on the twenty-seventh day of Jtme, IQ06, appointing me, the under- signed, a referee, to examine the annual account of M. J., said administratrix of the estate of T. J., deceased, rendered for settle- ment and filed in this court on the sixteenth day of June, igo6, and to make report thereon, I do now respectfully report to this honorable court, as follows : That I have fully and carefully examined said account and the vouchers produced in support thereof; that I have been attended upon said examination by said administratrix and her counsel, and by F. J. P., Esq. That said account contains a just and full statement of all the moneys received and disbursed by said administratrix from the sixteenth day of May, ipo6, the commencement of her administra- tion of said estate, to the sixteenth day of June, igo6, including all sums of money belonging to the said estate which came to her hands as such administratrix, or were received by any other per- son by her order or authority for her use as such administratrix during said period. RrrruRN — Account — R^pom. 903 That the amount of said money thus received, as aforesaid, was the sum of sez'cn thousand one hundred and sixty -five dollars, and the amount thus disbursed, as aforesaid, was the sum of one thou- sand three hundred and sixty-nine dollars and fifty cents, leaving in the hands of the said administratrix the sum of five thousand seven hundred and ninety-five dollars and fifty cents, to the credit of said estate, subject to the payment of the claims allowed against said estate and the expenses of closing the administration. That for all items of expenditure proper vouchers were pro- duced before me, cls filed in this court, except for three items, each below twenty dollars, and amounting in the aggregate to a sum not exceeding five hundred dollars, to wit, the sum of tivo dollars ; for these, no vouchers were produced, but it was proved before me. by the oath positive of the said administratrix, as attached to the said account, which oath is uncontradicted, that such items were actually paid by her, at the places where, the dates when, and to the parties stated and set forth in said account. I further report, that, after having fully and carefully examined said account, I am satisfied that the same is true, just, and cor- rect, and entitled to allowance and approval. I therefore respectfully recommend its allowance and approval, and that a decree be entered that said account as presented be settled, approved, and allowed. All of which is respectfully submitted. NOTE. — In California the referee hears and determines the matter, and makes his report. The same proceedings are had in all respects, and the referee has the same powers, and is entitled to the same com- pensation, and subject to the same control, as in other cases of refer- ence. The court may remove the referee, appoint another in his place, set aside or confirm his repott, and adjudge costs, as in actions against executois or administrators, and the judgment of the court thereon is as valid and effectual, in all respects, as if tbe same had been rendered in a suit commenced by ordinary process: Csl. C. C. P., sees. 1507, 15G8; Alaska, Codes, pt. 4, e. 8i, sec. 286; Arizona, C. C, pars. 1756, 1757; Idaho, C. C. P., sees. 4147, 4148; Montans., C. C. P., sees. 2617, 2618; North Dakota, Probate Code, sees. 6411, 6412; Oregon, Codes and Stat- utes, sees. 1164, 1165; South Dakota, Probate Code, sees. 1S5, 186; Utah, Rev. Stats., sec. 3S64; Washington, Balliuger's Codes, sees. 6241, 6242; Wyoming, Eev. Stats., sees. 4762, 47'S3. No. 1525. — Report of Appraiser — Inheritance Tax. [Title of Court and Estate.] The undersigned, appraiser, appointed by said court by author- ity of the laws of the state of California establishing a tax on gifts, legacies, inheritarces, bequests, devises, successions and f transfers, hereby respectfully reports his proceedings under the said appointment, as follows: 904 New BoC'K ot Forms. Immediately after appointmpointment of Elxecutor — Adminis- trator. [Title of Court and Estate.] Whereas, H. S. has petitioned said court to be appointed ad- ministrator of the estate of said S. W., deceased, he not being en- titled to receive said letters unless at the request of the person entitled to letters. Now comes M. W., the widow of said S. IV., and an unmarried person, and, waiving her right to be appointed administratrix of said estate in favor of said H. S., prays the court to grant the petition of said H. S. State of Nevada, County of Storey, — ss. M. W., being duly sworn, says : That she is a resident of the state of Nevada, county of Storey. That she is unmarried and the widow of S. W., who died in California, January j, ipo6. That her husband was the same person described in the petition of H. S. praying for letters of administration, filed in tlie su- perior court of the dty and county of San Francisco on January 28, igo6. NOTE. — In California administration may be granted to persons not otherwise entitled to it, at the written request of the person entitled. [When the person entitled is a nonresident of the state affidavits taken ex parte before any oflBcer authorized by the laws of this state to take acknowledgments and administer oaths out of this state may be re- ceived as prima facie evidence of the identity of the party] : Cal. C. C. P., sec 1379; Arizona, C. C, par. 1661; Idaho, C. C. P., sec. 4055; Mon- tana, C. C. P., sec. 2448; Nevada, Comp. Laws, sec. 2834; North Dakota, Probate Code, sec. 6319; South Dakota, Probate Code, see 94; Wyoming, Bev. Stats., sec. 4652. SALE OF REAL ESTATE. No. 1535. — Sale of Real Estate — Objections to Confirmation of. [Title of Court and Estate.] Now comes A. B., a residuary legatee under the will of the said E. F., deceased, and objects to the confirmation of sale by the executor of said will of all that land described as follows [de- scription], made on the jd day of June, ipo6, to O. F. for $10,- 33 7 f upon the ground that a fair value for said real estate is not T less tlian $20,000, and because the said executor did not follow New Forms — 58 914 New Book of Forms. business methods in advertising said sale, and because upon a resale, properly advertised, said real estate ought to bring at least $1^,000. NOTE.— California, C. C. P., see. 1553; Alaska, Ck)des, pt. 4, e. 85, sees. 840, 841; Arizona, C. C, par. 1793; Idaho, C. C. P., sec. 4190; Montana, C. C. P., sec. 2686; New Mexico, Comp. Laws, sees. 1946-2020; North Da- kota. Probate Code, see. 6440; Sonth Dakota, Probate Code, see. 216; Washington, Bailinger's Codes, sec. 6273; Wyoming, Eev. Stats., sec 4795. No. 1536. — Sale of Real Estate — Objections to. [Title of Court and Estate.] Now comes A. B., an heir at law of the said C. D., deceased, and objecting to the court's granting the administrator of the es- tate of said deceased authority to sell the real estate described in his petition, states that the rents and interest, money due the estate and money on hand, are more than sufficient to pay all debts of the estate and the expenses of administration. That it is not true, as stated in the application for an order to sell said real estate, that it is for the best interests of said estate that said property should be sold. Wherefore this objector prays that said application be denied. NOTE.— California, C. C. P., sec. 1518; Alaska, Codes, pt. 4, e. 85, sees. 835-839; Arizona, C. C, par. 1765; Idaho, C. C. P., see. 4159; Montana, C. C. P., sec. 2643; Nevada, Comp. Laws, see. 2910; New Mexico, Comp. Laws, sees. 1946, 2020; North Dakota, Probate Code, sec. 6436; South Dakota, Probate Code, sees. 201-209; Washington, Bailinger's Codes, sec 6251; Wyoming, Eev. Stats., sec. 4770. STIPULATION. No. 1537. — Stipulation Transferring Case. [Title of Court and Cause.] It is hereby stipulated that the above-entitled action may be transferred to tlje superior court of the county of Yuba because of the disqualification of the judge of the above-entitled court in which said action is pending. (All courts.) NOTE. — If an action or proceeding is commenced or pending in a court and the judge or justice thereof is disqualified to try the case, it may be transferred to a court, the parties may agree upon by stipula- tion in writing, or made in open court and entered upon the minutes: Cal. C. C. P., sec 398. Stipulation. 915 No. 1538. — Stipulation — Deposition to Take. [Title of Court and Cause.] It is hereby stipulated that the deposition of R. C, a witness on behalf of the pluinlilt in tlie above-eniiucd action, may be taken before AI. S., a notary public in and for the city and county, of Sacramento in this state, at his office in said city and c^iunty on the sixth day of June, igo6, between the hours of 9 A. M. and 6 P. M. of that day, and if not comnleted (jn that dav, mav be continued from day to day successively thereafter, and over Sundays, at tlie same place, until completed. [And when so taken, the said deposition may be used on the trial of said action, sub- ject to the same objection (except as to the form of interroga- tories), as if the said witness were there personally present and testifying therein.] (All courts.) NOTE. — The Code of Civil Procedure provides that notice to take a deposition must be given and served upon the advcrso party, and in somu cases an affidavit must be made and filed. (See "Notice" and "Af- fidavit.") Frequently it is stipulated that a deposition may be taken which seems to waive the making and filing of the affidavit; but it is al- ways necessary to file the stipulation with the clerk of the court unless the agreement is made in open court and entered on the minutes. It ought, strictly, to be done before the deposition is taken, but often it is nrithrr written nor entered in the minutes. The statute does not say when it must be entered in the minutes or filed. The cases hereaft'^r cited construe the statute liberally. An attorney has authority "to bind his client in any of the steps of an action or proceeding by agreement filed with the clerk, or entered upon thr- minntes of tho court, and not otherwise." In such matters an "agreement" is a stipalation: Cal. C. C. P., sec. 2S.3; Alaska, Codes, pt. 4, c. Tfi, soc. 7.''.7: Idaho. C C P.. sec. 3©9.5; Montana, C. C. P., sec. 398; Nevada, Comp. Laws, sec. 2621; North Dakota, Political Code, see. 429; Oregon, Codes and Statutes, sec. 105S; South Dakota, Penal Code, sec. fi99; Utah, Rev. Stats., se*. 115; Washings ton, Ballinger's Codes, sec. 4766. Who nay Stipulate. — Where a party appears by attorney, the attor- ney has the exclusive right to manage the case: Estate of Arguello, 50 Cal. 308. A party who appeared by attorney signed, in the temporary absence of his attorney, a stipulation giving time to file a statement. The court disregarded it: Mott v. Foster, 4.5 Cal. 72. Consideration for. — The consideration may be established by parol, and by parol shown that it has failed. In such case the party causing th • failure cannot invoke the agreement. It does not follow that a eon- Bideration is necessary; but if there is one it seems to control the writ- ing or minute entry: Raymond v. McMullen, 90 Cal. 122, 27 Pac. 21. Admissions. — If it is admitted that an oral stipulation was made, it cannot be enforced, yet there was an admission of an oral agreement to extcjid the time for answer which defendant relied upon, but judgment by default was entered against him. The supreme eonrt said the judg- ment must be set aside: Johnson v. Sweeney, 95 Cal. 304, 30 Pac. 5td. In that case the court said that if a denial had been pleaded that the stlpu- 9i6 New Book of Forms. l.ition was made, thp judgment wonld not be disturbed, but the oral agree- ment being admitted, "there is no reason for the application for the rule, an '. it is too late to repudiate the stipulation after it has been executed." Oral Stipulations not Binding. — But if reliance is reposed in the word of a reputable attorney (all attorneys are reputable until disbarred), and if the reputable attorney repudiates his stipulation, the oral stipulation will be disregarded, and relief granted on the ground of surprise: Eobert- son V. Williams, 81 Cal. 268. Oral stipulations will be regarded so far as they are admitted by the party against whom they are sought to be enforced: Rees v. Mahoney, 21 Cal. 30.5. If the stipulation is made in open court and not entered in the minutes at the time it was made, an order directing it to be entered nnnr pro tuiw is void: Borkheim v. North British Ins. Co., 38 Cal. 623. In California it has been said that "where an oral agreement for an extension of time to answer or demur is ad- mitted, and has been relied upon by the defendant, a judgment by de- fault taken against him in violation of the stipulation should be set aside": Johnson v. Sweeney, 95 Cal. 304. 30 Pac. 540. Oral statement or admission made at a trial and not entered upon the minutes may be acted upon by the court, nor need the minutes be amended to show the stipulation : but the stipulation may be shown in the statement or other record on motion for new trial: Greiss v. State Investment Co., 93 Cal. 411, 28 Pac. 1041. The provision of the Code of Civil Procedure, which provides that an attorney can only bind his client by his agreement "filed with the clerk or entered upon the minutes of the court, and not otherwise." does not enlarge or abridge the authority of the attorney. Its provisions refer to executory agreements, and not to those which have been whollv or in part executed : Smith v. AVhittier, 95 Cal. 279, 30 Pac. 529. Time of Filing. — Such stipulations are filed in time if they are on file when the court is called upon to act upon the matter affected by the Btipulation: Simpson v. Budd, 91 Cal. 488, 27 Pac. 758. If it is not filed nntil after the entry of judgment, the party signing is estopped from ob- jecting: Dougherty v. Friermuth, 68 Cal. 240, 9 Pac. 98. It was stipulated that the testimony of a witness taken in another action might be used in an action to be tried thereafter. The witness died before the testimony was offered in evidence. Held, that the death of the witness prior to the withdrawal of the unfiled stipulation rendered the agreement irrevocable, and the filing of the stipulation made is binding unon the parties "as from its date": Smith v. Whittier, 95 Cal. 279. 30 Pac. 529. "Though stinulations do not bind the parties until filed, yet when filed they do bind the parties, and may be used to show that a party has violated his stipulation and as a basis of relief to the person who has been injured by trusting to it": Cooper v. Gordon, 125 Cal. 296, 57 Pac. 1006. This and all the cases cited in this note appear to be in harmony with the statute and the rules of statutory construction. SUBPOENA. No. 1539. — Subpoena — Civil Proceedings. [Title of Court and Cause.] The People of the State of California, Send Greeting to /. S., and L. D. J.: We command you that all and singular, business and excuses being laid aside, you appear and attend before our said superior Subpoena. 917 court of the city and county of San Francisco, state of Califor- nia, at a session of said court to be held at the courtroom of said court [Department No. i], in the New City Hall, in said city and county of San Francisco, on the twenty-first day of December, IQ06, at 10 o'clock A. M., then and there to testify in the above- stated cause, now pending in said superior court, on the part of the plaintiff ; and for a failure to attend you will be deemed guilty of contempt of court, and liable to pay all losses and damages sus- tained thereby to. the parties aggrieved, and forfeit one hundred dollars in addition thereto. (All courts.) NOTE.— California, C. C. P., sees. 1985-1997. See, also, Pen. CL, sees, 1326-1330. No. 1540. — Subpoena (Nonresident Witness). [Title of Court and Cause.] You are commanded to appear before the superior court of the county of Sacramento, state of California, at the courtroom of said court, at the courthouse in the said county of Sacramento, on the second day of May, 1906, at // o'clock A. M., as a witness in a criminal action prosecuted by the people of the state of Cali- fornia against /. S., on the part of the people of the state afore- said ; and it appearing to the court that you are not a resident of said county, you are hereby ordered to attend as a witness as hereinabove commanded. (All courts.) NOTE.— California, Pen. C, sees. 1330, 1331. No. 1541. — Subpoena — Affidavit — Secure Attendance of Non- resident. [Title of Court and Cause.] /. H. K., district attorney of said countA', being duly sworn, says that B. J., resident of the county of Monterey, state of Cali- fornia, necessary and material witness for the People in the action of the people of the state of California against /. S., and he verilv believes that the evidence of the said B. J. is material, and that his attendance at the trial of said action is necessary ; wherefore he prays for an order for the attendance of said witness. [This is frequently indorsed on the subpoena.] (All courts.) NOTE.— California, Pen. C, sec. 1330. giS New Book of Forms. No. 1542. — Subpoena — Affidavit of Service. [Title of Court and Cause.] G. IV. T., of said city and county, being duly sworn, says that he served die within subpoena, by showing the said within origi- nal to each of the following persons named therein, and deliver- ing a true copy thereof to each of the said persons, personally, on the tzveiitieth day of December, ipo6, at the city and county of San Francisco, to wit, L. D. J., who did not demand fees, and /. S., who demanded and received his fees — two dollars. (All courts.) NOTE.— California, C. C. P., sec. 2009. No. 1543. — Subpoena — Certificate of Service. [Title of Court and Cause.] I hereby certify that I served the within subpoena by showing the said within original to each of the following persons named therein, and delivering a true copy thereof to each of the said persons personally, on the twentieth day of December, IQO^, at the city and county of San Francisco, to wit, L. D. J., who -did not demand fees, and /. S., who demanded and received his fees — two dollars. Fees, $1.00. Service, $2.00. Mileage, $2j.oo. NOTE.— California, Pen. C, sec. 1328. No. 1544. — Subpoena — Criminal Proceeding. [Title of Court and Cause.] You are commanded to appear before the superior court of the county of Santa Barbara, state of California, at the courtroom of said court, at the courthouse, in the city of Santa Barbara, in said county, on the twenty-fifth day of January, jpo6, at 10 o'clock A. M., as witness in a criminal action prosecuted by the people of the state of California against said /. S. on the part of the people of the state aforesaid. Given under my hand this tenth day of January, ipod. INDORSEMENT OF SERVICE- I hereby certify that I have served the within subpoena by showing the within original to the within named S. H. and A. J. Subpoena, 919 personally, and informing each one of them of the contents there- of, on or prior to tlie third day of June, ipo6, at the county of Napa. NOTE. — In California a subpoena may be sifted and issued by: 1. A ma^strate before wlioni a complaint is laid for a witness in the state, either on behalf of the people or of the defendant; 2. The district at- torney for witnesses in the state in support of the prosecution, or for such other witnesses as the grand jury, upon an inve8tigatix)n, pending before them, may direct; 3. The district attorney for witnesses in the state, in suytport of an indictment or information, to appear before the court in which it is to be tried; 4. The clerk of the court in which an indictment or information is to be tried; and he must, at any time, upon application of the defendant, and without charge, issue as many blank subpoenas, subscribed by him as clerk, for witnesses in the state, as the defendant may require. If books, papers, or documents are required, a direction to the follow- ing effect must be contained in the subpoena: "And you are required also, to bring with you the following." [Describing intelligently tho books, papers, or documents required.] No person is obliged to attend under subpoena out of the county of his residence unless upon affidavit of the district attorney, or prosecutor, or of the defendant, or his counsel, stating that he believes the evidence material, and his attendance and examination necessary. A justice of the supreme court or a judge of a superior court indorses on the sub- poena an order for the attendance of the witness: Pen. C, sees. 1326- 1330. It may be served by any person. Service is made by showing the original to the witness personally and informing him of its contents: Id. sec. 1238. If the witness attends from out of the county upon the order of the court, or if he is poor, the court may order his expenses paid. Id., sec. 1329. If served by a sheriff or other peace officer, he must make a wntten return of service: Id., sec. 1328. Peace officer, sheriff, constable, marshal, policeman of a township, city or town: Id., see. 817. No. 1545. — Subpoena — Bring Papers, etc. [Title of Court and Cause.] The People of the State of California to /. D., R. R., and J. S.: You are commanded to appear before the superior court of the county of Sajita Clara, state of California, at the courtroom of said court, at the courthouse, in the city of San Jose, in said county [or before the grand jury] on the tzccnty-Hfth day of Jamiary, igo6, at 10 o'clock A. M., as witness in a criminal action prosecuted by the people of the state of California against Jack S., on the part of the people of the state of California, and you, the said J. S., are required also to bring zvith you and harce before said court a certain document [describing the same so that he max understand it, and also a certain weapon or other _ thing described]. » f (All courts.) NOTE.— California, C. C. P., sec. 1985. 920 New Book of Forms. No. 1546. — Subpoena Duces Tecum — Civil Proceedings. The People of the State of California Send Greeting to C. J.: We command you, that all and singular business and excuses being laid aside, you appear and attend before our said superior court of the city and county of San Francisco, state of California, at a session of said court to be held at the New City Hall, in the city and county of San Francisco, on the second day of December, 1906, at 10 o'clock A. M., then and there to testify in the above- stated cause, now pending in said superior court, on the part of the defendant; and for a failure to attend, you will be deemed guilty of a contempt of court, and liable to pay all losses and damages sustained thereby to the parties aggrieved, and forfeit one hundred dollars in addition thereto ; and that you bring with you and produce, then and there, a certain book being the [here describe the book or paper, so that the witness cannot mistake it], now in your custody. (All courts.) No. 1547. — Subpoena — Order — Witness to Attend. [Title of Court and Cause.] Upon reading the foregoing affidavit, it is ordered by the Hon- orable T. B. C, judge of the superior court of said county, that E. J. do attend as witness before the honorable, the superior court, at the courthouse of said county, as commanded by the foregoing subpoena. Done at the courtroom of said court, in the county of Santa Barbara, this twenty-second day of January, IQ06. (All courts.) [To be indorsed on subpoena.] NOTE. — When a witness who lives out of the connty is to be sum- moned, an affidavit is necessary, and also the judge must indorse on the subpoena an order for his attendance: Gal. Pen. C, sec. 1330. No. 1548. — Subpoena — Return of. [Title of Court and Cause.] I hereby certify that I served the within subpoena on the twenty-second day of January, ipo6, on J. D., R. R. and J. S., being the witnesses named in said subpoena, at the county of Santa Clara, by showing the original to each of said witnesses per- sonally, and informing each of them of the contents thereof. NOTE. — California, Pen. C, sec. 817. Subpoena. 921 No, 1549- — Subpoena — Application for to Compel a Subscrib- ing Witness to Attend Before an Officer to Prove the Execution of a Conveyance. To /. M., Esq., Notary Public [or Other Officer Authorized to Take Acknowledgments] of the City and County of San Francisco : I, E. F., do hereby make application to you to issue a subpoena, requiring A. B. to appear and testify before you, touching the execution of a certain conveyance of real estate, made and exe- cuted by C. D., to me, the said B. F. [or if the application is made by the heir or personal representative of the grantee, name such grantee], and to which the said A. B. is a. subscribing witness; the said A. B. having refused, upon my request, to appear and testify touching the execution of the said conveyance ; and the same not having been proved or aclcnowledged, cannot be so proved or acknowledged without the evidence of the said A. B. Dated the 2d day of May, 1905. Subscribed and sworn to before me this 2d day of May, 190^. J. M., Notary Public. NOTE.— California, C. C, sec. 1201. 1^. 1550. — Subpoena. [Title of Court and Cause.] The People of the State of California Send Greeting to D. E.: We command you that all and singular, business and excuses being set aside, you api>ear and attend before the undersiirned, J. M., a notary public in and for the city and county of San Fran- cisco, state of California, at my office in the Merchants' Exchange Building, in said city and county, on the jrf day of May, A. D. 190^, at 10 o'clock A. M., then and there to testify in the above- entitled cause now pending in said superior court, on the part of plaintiff, and for failure to attend you will be deemed guilty of contempt of court, and liable to pay all losses and damages sus- tained thereby to the parties aggrieved, and forfeit one hundred dollars in addition thereto, and then and there produce the follow- ing described books and papers: [Describing them.] Date the ist day of May. A. D. 7905. Attest mv hand and the seal of my office, the day and year last above written, /. M., Notary Public. 922 New Book of Forms. NOTE.— C. C. P., sec. 1986; C. C, sec. 1201. Subpoena liy Officers Authorized to Administor Oaths or Take Testi- mony .^Officers, who are authorized by the laws of California to admin- ister oaths or to take testimony, such as judges, justices of the peace, notaries public, commissioners of courts, and all others authorized to take acknowledgments and proof of the execution of written instruments, may issue a subpoena for a witness to appear before him and testify as provided in sections 1985-1997, Code of Civil Procedure. Nonjudi- cial officers are by said sections given authority to issue subpoenas to fine, arrest, and imprison those who refuse to obey their citations; but it has been held by the supreme court of California that such authority cannot be conferred by statute upon nonjudicial officers, such as notaries public, under the state constitution. But notwnthstanding their lack of such power, a witness disobeying their subpoena is liable to an action for damages for his disobedience under the sections above noted and un- der section 1192, Civil Code. Such recalcitrant would, it seems, be liable to punishment for misde- meanor contempt under section 657, Penal Code. Therefore, it is im- portant that formal application be made and subpoenas issued, served and returned substantially as suggested in the above and following forms. It would seem to be a duty which a well-balanced notary public or ocher officer owes to the law which gave him official birthj^ that upon such disobedience some one in authority would be stimulated to make an effort to either punish, annoy, discommode, vex, discomfort, or frighten every recalcitrant that refuses to respond to a summons given "In the Name of the People of the State of California." No. 1551. — Subpoena — Affidavit to be Indorsed on Original Subpoena, [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. A. P., being- duly sworn says, that on the 2d day of May, IQ05, in said city and county, he served the within subpoena on A. B., therein named, personally, by then and there showing him the same, and delivering to him a true copy thereof, and by paying" [or, "tendering"] to him the sum of $2.00 for his fees for traveling to the place specified in the said subpoena, and for his attendance in pursuance thereof. Sworn to before me, this 2d day of May, ipo^. J. M., Notary Public NOTE.— California, a C. P., sec 2209. Summons. 923 suM:\roxs. No. 1552. — Summons — General. [Title of Court and Cause.] The People of the State of California Send Greeting to A. B. C, Defendant : You are hereby directed to appear and answer the complaint in an action entitled as above, brought against you in the superior court of the county of Butte, state of California, within ten days after the service on you of this summons — if served within this county, or within thirty days if served elsewhere. And you are hereby notified that unless you appear and answer as above required, the said plaintifif will take judgment for any money or damages demanded in the complaint, as arising upon contract, or he will apply to the court for any other relief de- manded in the complaint. NOTE.— California, C. C. P., sec. 407; Alaska, Codes, pt. 4, c. 4, sees. 42-53; Arizona, C. C, pars. 1314, 1316; Idaho, C. C. P., sees. 3190-3194; Montana, C. C. P., sees. 630-643; Nevada, Comp. Laws, see. 3121; New Mexico, Comp. Laws, sec. 2685, snbds. 18, 19; North Dakota, C. C. P., sec. 8414; Oregon, Codes and Statutes, sec. 2201; South Dakota, C. C. P., sees. 104, 105; Utah. Rev. Stats., sec. 2939; Washington, Ballinger's Codes, sees. 4869-4872; Wyoming, Eev. Stats., sees. 3507-3519. No. 1553. — Summons — Eminent Domain (Condemnation of Land) . [Title of Court and Cause.] The People of the btate of California Send Greeting to A. B., a Corporation, C. D., E. F. and G. H.: The above-entitled action is brought by the plaintiff to condemn a right of way through that tract of land situated in the city and county of San Franciwo, state of California, and bounded and de- scribed as follows, to wit: [Description of the whole property.] Said right of way consists of a strip of land for a double track of the plaintiff's road between [particularjy describe the strip]. Reference is made to the complaint herein for a description of the respective parcels of said tract of land. And you, and each of you, are hereby notified to appear and show cause why the property described should not be condemned f 9^4 New Book o? Forms. as prayed for in the complaint within ten days after the service on 3-ou of this summons — if served within this county; or within thirty days if served elsewhere. And you are hereby notified that unless you appear and answer as above required, the said plaintiff will take judgment for any money or damages remanded in the complaint, as arising upon contract, or it will apply to the court for any other relief de- manded in the complaint. NOTE.— California, C. C, sec. 1245; Arizona, C. C, pars. 2453, 2454; Idaho, C. C. P., sec. 3848; Montana, C. C. P., sec. 2218; Nevada, Comp. Laws, sees. 3121, 3919; New Mexico, Comp. Laws, sec. 2685, subds. 17, 18; North Dakota, C. C. P., sec. 8414; Oregon, Codes and Statutes, sec. 5098; South Dakota, C. C. P., sec. 867; Utah. Rev. Stats., sees. 2939, 3593; Washington, Ballinger's Codes, sees. 779, 780. No. 1554. — Summons — Partition of Land- [Title of Court and Cause.] The People of the State of California Send Greeting to G. E. B. and M. G. S., Executor of the Last Will of S. D., Deceased, and all Joint Tenants and Tenants in Common, and all Per- sons having any Interest in or Liens of Record by Mortgage, Judgment, or Othertvise, upon the Property Hereinafter De- scribed or any Part Thereof, and to all Persons Unknown Who Have or Claim any Interest in that Real Property, Bounded as Pollows [Description], Defendants.' You are hereby directed to appear and answer the complaint in an action entitled as above, brought against you in the superior court of the city and county of San Francisco, state of California, within ten days after the service on you of this summons, if served within said city and county, or within thirty days if served else- where. And you are hereby notified that unless you appear and answer as above required, the said plaintifif will take judgment for any money or damages demanded in the complaint as arising upon con- tract, or will apply to the court for any other relief demanded in the complaint, including the partition of the real property herein- before described. NOTE. — This summons makes the property sought to be divided and described in it a party defendant, and also all persons unknown who have an interest in the property. The conclusion of the summons re- fers to the partition prayer of the complaint. Such matter is clearly unnecessary under Code of Civil Procedure, section 407. (See Sum- mons.) Such matter may be entirely unnecessary, but in San Fran- cisco it would be difficult to secure a loan secured by mortgage on the Summons. 925 land partitioned in an action where service was by publication, or julg- mcnt by default had, upon a summons minus such reference. The stat- ute directs the summons to be directed precisely &a in thia form: Cal. a C. p., sec 756. No. 1555. — Summons — Forcible Entry and Unlawful De- tainer — General. [Title of Court and Cause.] The People of the State of California Send Greeting to H. S., Defendant: You are hereby required to appear and answer, on or before Monday, the I2th day of August, 1906, the complaint filed in an action brought against you by the above-named plaintiff (G. H., Esq.), in the superior court of the county of Sierra, or judgment by default will be taken against you, according to the prayer of said complaint. The said action is brought to recover possession of those cer- tain premises situated in the town of Downiez'Ule, county of Sierra, state of California, and described as follows, to wit : That house known as the Globe Hotel, being No. S7^^> Shipley street, in said town, which is alleged to be unlawfully detained by you, after default in the payment of rent, pursuant to the lease or agreement under which you hold possession of said premises ; and also to recover the sum of $350, rent unpaid and now due and owing by you to the above-named plaintiff for one month's rent of said premises, and also such further sum as may accrue from the time of filing the complaint in the above-entitled action to the rendition of judgment in said action ; and also, that the amount found due for rent may be trebled, and made payable in gold coin; and also for costs of this suit; and also that by said judg- ment it be declared that the lease or agreement under which you hold said demised premises be forfeited. And it is directed that this summons be served on the defendant herein at least two days before the return day designated herein, and the return day is August 12, igo6. And you are hereby notified that if you fail to appear and an- swer the said complaint as above required, the relief therein sought will be taken against you. NOTE. — The summons must state the parties, the court, and the nature of the action in concise terms, the relief sought, the return day, and must notify the defendant to appear and answer within the time desig- nated, and if he does not, the relief sought will be taken against him. It must be served at least two days before the return day and must be described to the defendant, and must be served and returned in the Bame manner as summons in a civil action: Cal. C. C. P., sees. 1166, 1167; Arizona, C. C, par. 2673; Idaho, C. C. P., sec. 39S3; Montana, G- C. P., sec. 2088; Nevada, Comp. Laws, sees. 3842, 3855; New Mexico, 926 New Book of Forms. Comp. Laws. sec. 2685, subds. 17, 18; North Dakota, J. C, see. 6637; Oregon, Codes and Statutes, sec. 5749; South Dakota, J. C, sec. 13; rtah. Rev. Stats., sec. 3580; "Washincrton, Ballingcr's Codes, see. 5532, 5533; Wyoming, liev. Stats., sees. 4488. No. 1556. — Summons of Juror. [Title of Court and Cause.] State of California, County of Napa, — ss. To R. R.: You are hereby summoned to appear in the superior court of the county of Napa, state of California, at the opening of the regular session thereof, at the courtroom of said court, in the courthouse in said county, on the eighth day of September, igo6, at 10 o'clock A. M., to serve as a trial juror, and herein fail not (All courts.) NOTE.— For courts of record, C. C. P., sees. 225-228. Pot courts not of record, Id., sees. 2.30-232. To complete panel, In., 237. For inquests, Id., 235. To serve one year, Id., see. 210. YENIEE. No. 1557. — Venire — Certificate, Clerk's. [Title of Court and Cause.] State of California, County of Alameda, — ss. I, A. R., county clerk of the county of Alameda, hereby certify that on Monday, the eleventh day of July, igo6, the superior court of the county of Alameda made an order, directing a trial jurv% consisting of fifty jurymen, to be drawn and summoned to attend before said court, on Monday, the twenty-fifth day of July, ipo6, at the courtroom of said court, in the city of Oakland, in said county of Alameda. That immediately upon the order aforesaid being made, to wit, on said eleventh day of July, ipo6, I did, in the presence of said court, draw from the "jury box," as by law directed, the names of fifty qualified jurymen, as follows: No. Name. No. Name. I. Dennis Camron. 2. Patrick W. Tyler, {naming the whole panel.] Therefore, to the Sheriff of said County, Greeting: You are commanded to summon the above-named jurors to be and appear in the superior court of the county of Alameda, to be VexirE — Verification. 927 held in the courtroom of said court, at the courthouse, in the said county, on the twenty-fifth day of July, ipo6, at 10 o'clock A. M., to act as trial jurors, and of this writ make legal service and due return. NOTE. — California, C. C. P., sees. 219, 220. No. 1558. — Venire — SpeciaL [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. To the SherifT of said County, Greeting: You are hereby commanded to summon from the body of your county twenty-four good and lawful men, to be and appear in the superior court of the city and county of San Francisco, Depart- ment No. 5, to be held in the courtroom of said court, at the iXew City Hall, in the said city and county, on the third day of January, jpo6, at 10 o'clock A. M., to complete the panel and act as trial jurors, and of this writ make legal service and due return. No. Name. Remarks. I. John Brown. , NOTK— California, C. C. P., sees. 226, 227. VERIFICATION. No. 1559. — Verification — Complaint or Answer. [Title of Court and Cause] State of California, City and County of San Francisco, — ss. /. /., being duly sworn, deposes and says, that he is the plaintiff (or one of the plaintiffs) in the above-entitled action ; that he has heard read the foregoing complaint and knozvs the contents there- of ; that the same is true of his own knowledge, except as to those matters which are therein stated on his information or belief, and as to those matters that he believes it to be true. 928 New Book of Forms. NOTE. — In California, in all cases of verification of a pleading, the afl5davit of the party mnst state that the same is true of his own knowl- edge, except as to the matters which are therein stated on his informa- tion or belief, and as to those matters that he believes it to be true; and where a pleading is verified, it must be bv the affidavit of a party, unless the parties are absent from the county where the attorney re- sides, or from some cause unable to verify it, or the facts are within the knowledge of his attorney or other person verifying the same. When the pleading is verified by the attorney, or any other person except one of the parties, he must set forth in the affidavit the reasons why it is not made by one of the parties. When the complaint is verified, the answer must be, unless an admission of the truth of the complaint might subject the party to a criminal prosecution (of any nature), or unless an officer of the state, in his official capacity, is defendant: Cal. C. C. P., see. 446. Except as aforesaid, if the complaint is verified, the answer, to be sufficient, must be verified: Id., sec. 437; Alaska, Codes, pt. 4. e. 10, sees. 71, 72, 217, 219; Arizona, C. C, par. 1358; Idaho, C. C. P., sec. 3219; Montana, C. C. P., sec. 730; Nevnda, Comp. Laws, sec. 3150; New Mexico, Comp. Laws, sec. 2685, subd. 48; North Dakota, C. C. P., see. 5281; Oregon, Codes and Statutes, sees. 82, 83; South Dakota, C. C. P., sec. 134; Utah, Eev. Stats., see. 2983; Washington, Ballinger's Codes, see. 4925; Wyoming, Rev. Stats., sec. 3576. Verification — To Make True. — Under the common-lnw system a verifi- cation consists merely of a concluding declaration of the bill, plea or answer that the pleader is prepared to show the truth of the aver- ments of his pleading. Under the code system a verification consists of an affidavit separate from, but immediately following and a part of the pleading, stating that its avermerts are true to the personal knowl- edge of the T»arty, save as to the matters therein stated on his inform.a- tion and belief, and as to those matters that he believes it to be true. In some states the matters alleged on information and belief must be stated to be so made, while in other states, with like provisions in their codes, the allegations made on personal knowledge and those on informa- tion and belief need not be distinguished. So. as to form of affidavit of verification, it has been held, variously, that it must, and again that it need not, contain the venue, the jurat and the signature or mark of the affiant. So, also, as to the separateness of the affidavit of verification, it has been held and again denied that a paper or pleading properly entitled, but in form an affidavit concluding with the usual jurat, is a verified pleading. Venue not Necessary. — A board of equalization has no power to re- duce an assessment except upon written verified application: Pol. C, sec. 3574. An application was signed by C. & R. and then the following words followed, "Sworn to before me this 19th day of July, 1881" [signed, A. B. W., Clerk]. The court said: "This is a compliance with th^ statute": Garrison v. Board, 61 Cal. 54. In a proceeding to remove a public officer, an accusation in writing was filed commencing "J. M. W. upon oath presents," etc., "the fol- lowing accusation," alleging certain facts sufficient, if true, and prop- erly presented to justify the officer's removal. The accusation was signed by J. M. W. at the end, then came the following: "Subscribed and sworn to before me this 26th day of April, 1889. M. D. H., Clerk " and "Seal." In deciding the case the court said under the statute requiring the accusation "to be verified by the oath of a person," the accusation being signed at the end by the complainant made the whole document an affidavit: Woods v. Varnum, 85 Cal. 640, 24 Pac. 843. Verification. 929 "Snrplns Words." — A verification is sufficient which stntrs that A. B. "has read the foregoing petition, and is acquainted with the contents thereof; that the same is true of his own knowledge and belief." An insolvency proceeding was involved. In deciding the court said, "The words 'and belief may be treated as surplusage": Seattle Coal Co. v. Thomas, 57 Cal. 197. Construction of Words. — It is no objection to a claim of lien that the verification thereof recites that "the facts stated therein are true," in- stead of stating that "the claim is true": Corbet v. Chambers, 109 Cal. 17S. 41 Pac. 873. Verification Good When, If False, "Perjury" Could not be Asslpmed — Actual Knowledge not Necessary. — It was claimed that where a statute directs a statement to be "verified" without prescribing a form of verification, that the nffinnt was obligated to make affidavit that the statement was true; because, it was urged, that "perjury" could not be assigned if the statement was untrue, and Whitney Arms Co. v. Bar- low, 63 N. Y. 66, 20 Am. Kep. .504, was cited. Opposing counsel answered saying: "Such statements are not required to be verified in any par- ticular form; and the verification need not be unqualified and positive"; and Glen's Falls Paper Co. v. White, 18 Hun, 215, and Bonnell v. Gris- wold, 80 N. Y. 129, were cited. The court held that the statement sufficiently conformed to the require- ments of the act. The manager of the bank verified the statement as follows: "That the foregoing statement is to the best of his knowl- edge and belief a true and correct statement." The court said: "The objection that the affidavit [verification] is not positive, or made upon the actual knowledge of the affiant, is not ten- nble The legislature did not intend to require an affidavit [verifi- cation] of a higher degree than could be made on the part of the officer from whom it is demanded, and when an affidavit Tverification] is to be made of matters which are presumptively derived through in- formation from others, it is sufficient if the affiant [verifier] states that it is made to the best of his knowledge and belief": Bank of British N. A. V. Madison. 99 Cal. 129, 33 Pac. 762. "Legal Presuirtption. " — It was said in a California case where it ap- peared that an affida^'^t contained the usual jurat and a seal of a notary, but did not state a venue, that the objection to the want of venue can- not be sustained, "in view of the facts and legal presumptions in this ease, even if it be true that the want of a venue is in general fatal to an affidavit." The affidavit was as follows: "D. M. R. v. F. W. In the District Court of the Second Judicial District of the State of California, in and for the County of Butte." The jurat was: "Subscribed and sworn to before me tliis 24 day of April, 1878. J. R. R., (Seal of No- tary) Notary Public." The court then cites Young v. Young, 18 Minn. 94, and Barnard v. Darling, 1 Barb. Ch. 176, to the point that the absence of a venue is not fatal: Reavis v. Cowell, 56 Cal. 583. The "legal presumption" referred to is based upon the presumption that the notary "acted within his jurisdiction. ' ' It is difficult to understand what connection there was between the power of a notary public to administer an oath, and the question of law whether the affidavit was properly taken without a "venue" stated. The same difficulty arises in reading Bank of British N. A. v. Madi- son, 99 Cal. 129, 33 Pac. 762 (above in this note cited), when it refers to "information presum]>tively derived through information from others." The most reasonable presumption is that the court in em-h instance referred to the quasi judicial functions exercised under the seaJ New Forms — 59 I 930 New Book of Forms. of notaries public, which officers were in those days thonght, bv some, to possess, but which thought has since been stunted by sound law as expressed in Joost v. Craig, 131 Cal. 504, 82 Am. St. Eep. 374. No. 1560. — Verification — Complaint by Other than Plaintiff. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. W. T., being duly sworn on behalf of the plaintiff in the above- entitled action, says that he has read the foregoing complaint, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated on information or belief, and as to those matters that he believes it to be true. That the said plaintiff is absent from the city and county of San Francisco, where his attorney resides ; and the facts are within the knowledge of this affiant, who is the agent of the said plaintiff, and therefore he makes this affidavit. NOTE. — This and the form next following, depending as they do upon information and belief, belong to the lowest class of verifications: Cal. C. C. P., sec. 446. No. 1 56 1. — Verification — Election Contest. [Title of Court and Cause.] State of California, County of Napa, — ss. A. B. \the contesting party], being duly sworn, says that the matters and things contained in the foregoing statement are true. NOTE. — California, C. C. P., sec. 1115; Arizona, C. C, par. 2419; Idaho, C. C. P., sec. 3799; Montana, C. C. P., sec. 2014; North Dakota, C. C. P., pec. 563; Utah, Rev. Stats., sec. 917; Washington, Ballinger's Codes, Bee. 1430; Wyoming, Rev. Stats., sec, 362. No. 1562. — Verification — Action — Submission Without Con- troversy. [Title of Court and Cause.] State of California, County of Lake, — ss. A. B. and C. D., being each sworn, says, each for himself and not one for the other, that the facts stated in the aboA-p stinulation Verification — Warrant. 931 are tnie, and the controversy is real and the proceedings are in good faith to determine the rights of the said parties. NOTE.— California, C. C. P., sees. 1138-1140; Alaska. Codes, pt. 4, c 29, sees. 248-250; Idaho, C. C. P., sees. 3945-3961; North Dakota, C. C. P., flees. 6131-6134; Oregon, Codes and Statutes, sees. 41, 193. 195, 199, 413; South Dakota, 0. C. P., sees. 787-789; Utah, Bev. Stats., sees. 3218- 3220. No. 1563. — Verificatiop — Proceedings to Remove or Suspend an Attorney. [Title of Court and Cause.] State of California, County of Marin, — ss. A. B., being duly sworn, says that he has read [or has heard read] the foregoing charges against C. D. and that said charges are true. NOTE. — The foregoing form is necessary under the code which briefly Bays that the accusation must be verified by the oath of some persou to the effect that the charges therein contained are true: Cal. C. C. P., sec. 291. This form belongs to the highest class of verifications; that is to say, the affiant must make oath that i is true: Arizona, C. C, par. 403; Idaho, C. C. P., sec. 3103; Montana, C. C. P., sec. 420; Nevada, Comp. Laws, sec. 2629; Oregon, Codes and Statutes, sec. 1069; South Dakota, C. C. P., sec. 693; Utah, Eev. Stats., sec. 124. WARRANT. No. 1564. — Warrant — Search. [Title of Court and Cause.] State of California, County of Contra Costa, — ss. The People of the State of California, to any Sheriff, Constable, Marshal, or Policeman in the County of Contra Costa: Proof, by affidavit, having been this day made before me bv /. B., that at the house of H. A. W., at No. ^s? California street, in the town of Martinec, in said county, in room A^o. J2, in a tin box, in an old hair trunk under a bedstead, there is a gold hunting-case watch. No. 172,351, Dirking & Co., makers. Dog- town, Sierra, Co., Cal, zvhich watch ivas stolen from the person of affiant by A. D., on or about April i, 1905, and there is probable grounds for believing that said affidavit is true. [// u)ider the 932 New Book of Forms. statute the search may he made in either the day or night, so state in the icarrant.] You are therefore commanded to make immediate search in the da}i:ime, of the house of H. A. W., No. 557 California street, in the town of Martinez, in the said county, for the following described property [description as above], and if you find the same, or any part thereof, to bring it forthwith before me, at my courtroom, in Brayton township, in said Contra Costa county. NOTE. — A search-warrant is only issued upon affidavit, naming or describing the person, and particularly describing the property and place to be searched: Cal. Pen. C, sec. 1529. No. 1565. — Warrant, Bench — Indictment or Information. [Title of Court and Cause.] The People of the State of California, to any Sheriff, Constable, Marshal, or Policeman in this State: An indictment having been found {or an information having been Hied] on the tzuelfth day of Jnly, ipo6, in the superior court of the city and county of San Francisco, state of California, charg- ing C. G. S., with the crime of burglary: You are therefore commanded forthwith to arrest the above- named C. G. S., and bring him before that (or the court to zvhich the indictment has been sent) court to answer said indictment [or information] ; or if the court be not in session, that you de- liver him into the custody of the sheriff of the city and county of San Francisco. [If the offense is bailable, then there must he added to the body of the warrant — "or if he requires it, that you take him before any magistrate of the county, or in the county in which you arrested him, that he* may give bail to answer the in- dictment or information."] Given under my hand, with the seal of said court affixed, this twelfth day of July, 1906. [Indorsed: The defendant is to be admitted to bail in the sum of three thousand dollars.] NOTE. — In California, if a defendant has been discharged on bail, or has deposited money instead of giving bail, and does not appear to be arraigned when his personal attendance is necessary, the court, in addition to the forfeiture of the undertaking of bail, or of the money deposited, may order the clerk to issue a bench-warrant for his axrest: CaL Pen. C, sees. 981, 982. Warrant — \Vri.i^ 933 No. 1566. — Warrant — Indorsement, Service of. [Title of Court and Cause.] I hereby certify that I received the within warrant on the fif- teenth day of June, IQ06, and served the said warrant by arrest- ing the within named defendant, /. S., and bringing him into court, this fifteenth day of June, igo6. A. B. W., ShcrifT of Napa County. The within named 7. S., having been brought before me under this warrant, is committed for examination to the sheriff of the county of Napa. (All courts.) NOTE. — When complaint is made before a justice or police judge of the commission of an offense triable in such courts, a warrant must be issued for the arrest of the person charged. Cal. Pen, C, tee. 1427. [See Justice's Court.] No. 1567. — Warrant — Arrest. [Title of Court and Cause.] The People of the State of California, to any Sheriff, Constable, Marshal, or Policeman in the County of Napa: A complaint (or information), upon oath, having been this day laid before me, by £. D., that the crime of burglary has been committed, and accusing /. S. thereof, you are therefore com- manded forthwith to arrest the above-named 7. S., and bring him before me forthwith, at my office in said township, in said county of Napa [or, in case of my absence or inability to act, before th. nearest or most accessible magistrate in this county], to be dealt with according to law. Dated at my office in said township, in said county of Napa, this fifteenth day of June, ipo6. (All courts.) WILL. No. 1568. — Will — Certificate of Its Loss. [Title of Court and Estate.] I, 7. V. C, judge of the superior court in and for said city and county, do hereby certify : That on May p, ipo6, H. M. F. died in the city and county of San Francisco, state of California, and at the time of his death was a resident of said city anj county. That on the jd day of January, ipo6, the said decedent 934 New Book of Forms. i)i his lifetime* in the city and county of San Francisco, state of California, in the presence of H. C. and G. W. J., as subscribing witnesses, executed his last will and testament. Also, that he acknowledged the execution of the same in their presence, and declared the same to be his last will and testament, and the said witnesses attested the same at his request, in his presence, and in the presence of each other. That the said decedent, at the time of executing said will, as aforesaid, was of the age of eighteen years and upwards; was of sound and disposing mind, and not imder restraint, undue influence, menace, fraud, duress, or fraud- ulent misrepresentations, or in any respect incompetent to devise and bequeath his estate. That said will was in existence at the time of said testator's death, and it had not been annulled or revoked. That said will has since been by accident destroyed. That said will was in the words and figures following, to wit: [Here state the contents.] It is therefore ordered that this in- strument be filed and recorded as the last will and testament of said H. M. P., deceased, and that letters testamentary be issued to the executors named in said wall. In witness whereof, I have signed this certificate and caused the same to be attested by the clerk of this court under the seal thereof, this tenth day oi May, A. D. IQ06. NOTE— In California when a lost will is established, the provisions thereof must be distinctly stated and certified by the judge under his hand and the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded and letters testamentary or of administration with the will annexed must be issued thereon in the same manner as upon wills produced, and duly proved: Cal. C. C. P., sec. 1340; Arizona, C. C. par. 16?,1; Idaho, C. C. P., sec. 4026; Mon- tana, C. C.*P., sec. 2372; New Mexico, Comp. Laws, sees. 1989, 1990; North Dakota, Probate Code, sec. 6298; South Dakota, Probate Code, eecs. 62-6.5; Utah, Rev. Stats., sec. 3811; Washington, Ballinger's Codes, sec 6118; Wyoming, Bev. Stats., sec. 4596. No. 1569.— Will — Certificate of Proof of. {Title of Court and Estate.] State of California, City and County of Sacramento, — ss. I, R. C. C, judge of the said superior court, do hereby certify, that on the second day of May, igo6, the annexed instrument •At this point "quite a few" practitioners insert the words in italics. Such precaution is seemingly to rebut an unimaginable pre- sumption that the testator was not quite dead when he executed his very last will at "the county aforesaid." At the present writing, Jajiuary 1, 1906, a few survivors of the precautious bar of 1806 put up the same bar against a possible special demurrer. Wiix. 935 was admitted to probate as the last will and testament of P. C, deceased, and, from the proofs taken and the examinations had therein, the said court finds as follows : That said P. C. died on or about the eleventh day of Afril. jgo6, in the county of Sacramento, state of California; that at the time of his death he was a resident of the county of Sacra- mento, aforesaid [or that he left estate in said county], state of California; that the said annexed will was duly executed by the said decedent, in the county of Sacramento aforesaid, state of California, and signed by the said testator in the presence of M. K. and H. W., the subscribing witnesses thereto, also that he acknowledged the execution of the same in their presence, and declared the same to be his last will and testament, and the said witnesses attested the same at his request in his presence and in the presence of each other ; that the said decedent, at the time of executing said will, was of the age of eighteen years and up- wards, was of sound and disposing mind, and not under duress, menace, fraud, or undue influence, nor in any respect incompe- tent to devise and bequeath his estate. In witness whereof, I h.ive signed this certificate, and caused the same to be attested by the clerk of said court, under the seal thereof, this second day of May, ipo6. NOTE. — In California, if the conrt is satisfied, upon the proof taken or from the facts found by the jury, that the will was duly executed and that the testator was, at the time of its execution, of sound mind and not acting under duress, menace, fraud, or undue influence; a cer- tificate of the proof, and the facts found, signed by the judge and at- tested by the seal of the court, must be attached to the will: Cal. C. C. P., sec. 1.317; Arizona, C. C, par. 1609; Idaho, C. C. P., sec. 4006; Mon- tana, C. C. P., sec. 2329; Nevada, Comp. Laws, sec. 2801; New Mexico, Comp. Laws, sees. 1989, 1990; North Dakota, Probate Code, sec. 6301; South Dakota, Probate Code, sec. 50; Wyoming, Eev. Stats., sec. -lOOL No. 1570. — Will — Testimony of Subscribing Witness. [Title of Court and Estate.] /. C, being duly sworn in open court, testifies as follows : I re- side in the city and county of San Francisco, state of California. I knew JV. G. P., on the first day of January, igo6, the date of the instrument now shown to me, marked as filed in this court on the 24th day of February, tqo6, purporting to be the last will and testament of the said decedent ; I am one of the subscribing witnesses to said instrument. I also knew at the said date of said instrument, H. B. and other of f said subscribing witnesses. • The said instrument was signed bv the said decedent at the . 92^ Ndw Book of Forms. said city and county of San Francisco, on the ^rst day of Jan- uary, ipo6, the day it bears date, in the presence of myself and of said H. B., and the said decedent thereupon pubHshed the said instrument as, and declared to us the same to be, his last will and testament, and requested us in attestation thereof to sign the same as witnesses. The said H. B. and I then and there, in the presence of the said decedent, and in the presence of each other, subscribed our names as witnesses to the said instrument. At the time of executing the said mstrument the said decedent was over the age of eighteen years, and was of sound and dis- posing mind, and not acting imder duress, menace, fraud, undue influence, or misrepresentation. [To preserve his evidence to be referred to in case of contest some attorneys take a similar affidavit from all the witnesses.] NOTE. — In California, the evidence of the subscribing witness to a ■win must be reduced to writing: Cal. C. C. P., see. 1314; Arizona, C. C, par. 1614; Idaho, C. C. P., sec. 4009; Montana, C. C. P., see. 2342; Nevada, Corap. Laws, sec. 2805; North Dakota, Probate Code, see. 6296; South Dakota, Probate Code, sees. 48, 49. No. 157 1. — Will — Testimony of Applicant on Probate, [Title of Court and Estate.] T. M., being duly sworn in open court, testifies as follows: I am one of the persons named as executors in the document now shown to me, marked as filed in this court on the eighteenth day of April, 1906, purporting to be the last will and testament of P. C. I reside in the city of Sacramento, and am of the age of twenty- one years and upwards. I knew said P. C; he is dead; he died on or about the elev- enth day of April, igo6, at his residence, in the city of Sacra- mento, state of California. At the time of his death he was a resident of the said city of Sacramento, and left estate, both real and personal, in the said city of Sacramento, state of California, and in the city and county of San Francisco, in said state. The real estate is of the value of seventy-five thousand dollars or thereabouts, and the annual rents, issues, and profits of said real estate amount to the sum of twelve thousand dollars, or thereabouts. The personal property is of the value of thirty thousand dol- lars, or thereabouts. The said estate and effects, for, or in respect of. which the pro- bate of said will has been applied for, do not exceed the value Wai* 937 of one hundred and hventy-Rvc thousand dollars. All of the es- tate of said deceased is common property, the same having been acquired after his marriage, except the real estate in San Fran- cisco, which ivas owned by him before his marriage. The said document came into my possession as follows, to wit : The said document zvas handed to me by J. C, the zvidow of said deceased, and I believe the same to be his last will and testament. The next of kin of said deceased are said J. C, his xvidow, and C. C. and B. C, his children, aged respectiz'ely, forty, eighteen and sixteen years, all residing in the city of Saeramento. On the ninth day of April, ipo6, when said will was executed, said deceased was over the age of eighteen years, being of the age of forty-five years, or thereabouts, and was of sound and dis- posing mind. NOTE.— California, C. C. P., sec. l.'?16; North Dakota, Probate Code, Bee. 6296; South Dakota, Probate Code, sec. 49. No. 1572. — Will — Contest of. [Title of Court and Estate.] Now comes H. F. W. F., son and heir of said H. M. F., the said deceased, and contesting the will filed in the court purport- ing to be the last will of said deceased, for ground of contest states : [if ths contest is on the ground oe incompetency.] The said H. M. F. zvas not, when said alleged zvill zvas ex- ecuted, of sound and disposing mind. In this: The said H. M. F. was under the influence of alcoholic drink, and other intoxi- cants to such degree that he did not know what he was doing when he executed said will. [if on the ground of duress STATE:] The said H. M. F. zvas, zvhen said alleged zvill zvas executed, acting under the undue influence of W. J. In this: The said deceased was a Protestant and, when said alleged will was exe- cuted, a member of the Methodist Church. That he had an an- tipathy to Unitarians, and all those not bcliezing in the diz'inity of Jesus Christ that approached monomania. That he had fre- quently said that a person not beliez'ing in the divinitv of Jesus Christ had no right to the possession or enjoyment of property (the foundation of all property being in God and giz'cn by His Son Jesus to man on condition that mankind zvould belicz'C in Him). 93S New Book of Forms. That the said W. J. 7vaj with said deceased, when said alleged will was executed; thxit for many years he, the said W. J., had been and then was a constant companion and warm friend of deceased, and deceased Imd absolute confidence in everything said JV. J. said. That on the day said alleged will was executed the said W. J. said to deceased tliat this contestant zvas a Uni- tarian, and to his, JV. J.'s, own knowledge, did not believe in the divinity of Jesus Christ. That deceased then and there, and acting under the information so obtained, did not provide for contestant in his alleged will; and contestant alleges that at the time said will was made he did believe in the divinity of Jesus Christ, and he does now believe in His divinity. That if said W. J. had not make the statements aforesaid deceased would have provided for contestant in his last will. [if on the ground that it was not properly executed.] That said alleged will was not properly attested and not prop- erly executed in this: The said deceased did not sign said will in the presence of alleged witnesses, nor did he acknowledge to said witnesses tliat the sig^iature to said will was his, or that it -was made by his authority. Nor did said witnesses sign said will as witnesses in tlu presence of the testator nor in the pres- etvce of each other. [if the will purports to be holographic, then :] That said alleged will was not entirely written, dated, and signed by the hand of the testator himself. In this: The figures in the last line "iSpf are in print and the word "ana" in tJte third line from the top was not zvritten by deceased. Wherefore contestant prays that said alleged will be denied probate. NOTE. — In Oalifornia, a will may be contested on any of the follow- ing grounds: 1. The competency of the decedent to make a last will; 2. The freedom of the decedent at the time of its execution from duress, menace, fraud, or undue influence; 3. The due execution of it and attesta- tion by' the decedent or subscribing witnesses; or 4. Any other questions Bubstantially affecting the validity of the will. The questions at issue must on request of either party in wiiting (filed three days prior to the day set for the hearing), be tried by a jury. If no jury is demanded, the court must try and determine the issues joined. On the trial, the contestant is plaintiff, and the petitioner is defendant: Cal. C. C. P., Bee 1312; Arizona, C. C, par. 1G12; Idaho, C. C. P., sec. 4007; Montana, C C P see. 2340; Nevada, Comp. Laws, sec. 2803; New Mexico, Comp. Laws, sec. 1985; North Dakota, Probate Code, sees. 6296-6304; South Dakota, Probate Code, sees. 46, 58-61; Utah, Rev, Stats., sec. 3791; "Wyoming, Kev. Stats., sec. 4602. WiLiv. 939 No. 1573. — Will — Contest and Opposition to Probate of. [Title of Court and Estate.] Now come M. G. S. and the M. T. Company of San Francisco, a corporation duly organized and existing under the laws of the state of California, as the executor of the last will and testa- ment of H. IV. D., deceased, by C. P., their attorney, and file this their opposition and contest to the probate of the alleged and pretended codicil to the will of said deceased, which alleged and pretended codicil is dated the 17th day of March, 1904, and the probate whereof has been petitioned for by /. C. R., by his petition filed herein on the loth day of September, 1904, and for ground of opposition and contest say: I. That the said S. D. died on the 5th day of April, A. D. 1904, in the city and county of San Frajicisco, state of California, and was at the time of his death a resident of said city and county, and left an estate therein consisting of real and personal prop- erty; that said deceased at the time of his death was of the age of seventy-eight years. That said deceased had never been married and left no de- scendants him surviving, and that his father and mother and each and all of his brothers and sisters, except his sister /. D., had died prior to the said 5th day of April, 1904. That at the time of the death of said deceased he left him sur- viving as his only heirs at law the following persons, whose names, ages, residences and relationship to said deceased are and were as follows, to wit: [Describe them.] That the said /. D., M. G. and H. W. are the only heirs at law of said deceased. That the said H. IV. died on the 6th day of May, A. D. 1904. at Churchville, in the county of Monroe, state of Nezv York, and a( the time of his death was a resident of said county and state, and left an estate in the state of California, situated partly in the city and county of San Francisco, and partly in other coun- ties in said state, consisting of real and personal property; that the estate of said H. W. situated in the state of California con- sists of an undivided one-quarter interest in all and singular tb." property comprising the estate of the said S. D., deceased. That said H. IV., at the time of his death, left a last will and testament, bearing date the 6th day of May, 1904, in which the M. T. Company of San Francisco was named, nominated and appointed as the executor thereof in respect to the estate of said H. W., deceased, situated in the state of Calif ornia. 940 New Book of Forms. That the said M. T. Company of San Francisco is and at all times herein mentioned has been a corporation duly organized and existing under the laws of the state of California, and doing business therein, and having its principal place of business in the city and county of San Francisco, in said state, and as such corporation has been and is now authorized, under and by vir- tue of its articles of incorporation, and under and by virtue of the provisions of the act of the legislature of the state of Cali- fornia, entitled "An act authorizing certain corporations to act as executor, and in other capacities, and to provide for and regu- late the administration of trusts by such corporations," approved April 6, i8gi, to act as executor of the last will and testament of deceased persons. That on the 14th day of June, 1^04, the superior court of the city and coimty of San Francisco, state of California, in a pro- ceeding then pending therein entitled, "In the Matter of the Es- tate of H. W., Deceased," duly made and rendered its order ad- mitting to probate the aforesaid last will and testament of the said H. IV., deceased, and directing the issuance of letters testa- mentary thereon to the said M. T. Company of San Francisco; that thereafter, and on the said 14th day of June, 1904, the said M. T. Company of San Francisco duly qualified as the executor of the said last will and testament of the said //. W., deceased, and letters testamentary thereon were duly issued to it, and ever since has been, and now is, the duly appointed, qualified and act- ing executor of the last will and testament of said H. W., de- ceased. II. That the said S. D., at the time of his death, left an olographic last will and testament bearing date the 21st day of February, A. D. iSqS, and which was entirely written, dated and signed by the hand of the said S. D. himself, and which said last will and testament is in the words and figures as follows, to wit : "San Francisco, Feb. 21st, i8g8. "In the Name of God, Amen — I, .S*. D., of the city and county of San Francisco, state of California, United States of America, born in the village of Galhvay, county of Saratoga, state of Nezv York, on the pth day of March, 1826, being of sound mind and m.emory, do make, publish and declare this to be rav last will and testament. "ist. I make, constitute and appoint /. C. of the city and county of San Francisco, whose office is at 408 California street, Room 2. my executor, of this my last will and testament, to act without giving any bond, undertaking -r^r security of any kind. In case of the inability of the said L C. from any cause whatever to act, I make, constitute and aopomt the U. T. Company of San Fran- War.. 941 cisco, xi'hose l>Iace of business is on the northeast corner of Mont- goDicry and Market streets, to act as executor in his stead. "I herebv revoke all former wills made bv me. "S. D., "408 California Street." That tlie aforesaid document constitutes and is the entire and only last will and testament of the said S. D., deceased. that on th.e /j//i day of May, 1904, the superior court of the city and county of San Francisco, state of California, in a pro- ceeding then pending therein, entitled "In the Matter of the Es- tate of S. D., Deceased," duly made and rendered its order ad- mitting to probate the aforesaid document dated the 21st day of February, A. D. 1808, as and for the last will and testament of the said S. D., deceased, and directing the issuance of letters testamentary thereon to the said /. C; that thereafter, and on the said 13th day of May, 1904, the said 7. C. duly qualified as the executor of the said last will and testament of the said S. D., deceased, and letters testamentary thereon were duly issued to him, and ever since the said J. C. has been, and now is, the duly appointed, qualified and acting executor of the aforesaid last will and testament of said S. D., deceased. III. That a document in writing bearing date the 17th day of March, 1904, and purporting to be an olographic codicil to the aforesaid last will and testament of S. D., deceased, and to be entirely written, dated and signed by the hand of the said S. D., has been heretofore presented to the above-entitled court for probate, as and for a part of the last will and testament of said S. D., deceased; that 7. C, who is named in the aforesaid last will and testament of S. D., deceased, as the executor thereof, by his petition filed herein on the loth day of September, ipo4, has petitioned said court that said document be admitted to probate as a codicil to and as a part of the last will and testament of the said S. D., deceased. IV. That said document bearing date the lyth day of March, IQ04, and purporting to be a codicil to the aforesaid last wall and testa- ment of said S. D., deceased, was not, nor was any part thereof, written, dated and signed, or written, or dated, or signed, by the hand of the said S. D. Wherefore, these contestants pray the judgment and decree of this court that the said alleged and pretended codicil bearing date the lyth day of March, 1904, is not a codicil to, nor any part of, the last will and testament of the said S. D., deceased, and that 942 New Book of Forms. the same fs null and void, and that probate thereof be denied, and th&t contestants be given judgment for their costs. NOTE.— California, C. C. P., sec. 1312; Arizona, C. C, par. 1612; Idaho, C. C. P., sec. 4007; Montana, C. C. P., sec. 2340; Nevada, Comp. Laws, sec. 2303; New Mexico, Comp. Laws, sec. 1985; North Dakota, Probate Code, sees. 6296-6304; South Dakota, Probate Code, sec. 4G; Utah, Eev. Stats., sec. 3791; Wyoming, Eev. Stats., sec. 4002. No. 1574. — Will — CoPxtest of Petition for Letters — Incompe- tency of Petitioner. [Title of Court and Estate.] Now comes C. D. and contesting the petition of A. B. for let- ters of administration upon the estate of E. F., deceased, for ground of contest states that the said A. B. is not a bona fide resi- dent of the state of California [or that he has been convicted of an infamous crime; or is under the age of majority; or has been adjudged by a court to be incompetent to execiite the irust by reason of drunkenness or improvidence, or zvants understand- ing, or lacks integrity], and is a resident of the city of Rochester, Monroe county, state of Neiv York. And contestant states that he has filed in this court his appli- cation to be appointed administrator of said estate, and he prays that this contest and said application may be heard together. NOTE. — For the reasons stated in brackets, the court may appoint the contestant: Cal. C. C. P., sec. 1374; Arizona, C. C, par. 1656; Idaho, C. C. P., sec. 4050; Montana, C. C. P., sec. 2443; Nevada, Comp. Laws, sec. 2829; New Mexico, Comp. Laws, sec. 1985; North Dakota, Probate Code, sees. 6296-6304; South Dakota, Probate Code, see, 46; Utah, Eev, Stats,, see. 3819; Wyoming, Eev. Stats., sec. 4649. No. 1575. — Will — Minors — Consent to Probate. [Title of Court and Estate.] I, C. H., attorney of the minors, C. C. and E. C, and J. C, widoiv, who are interested in the said estate to represent them on the hearing of the testimony in proof of a document filed in said court on the eighteenth day of April, ipo6, purporting to be the last will and testament of said deceased, do hereby appear on their behalf, and consent that the said document, purporting to be the last will and testament of said deceased, as aforesaid, be allowed and recorded herein, and be admitted to probate in said court. Will— Writ. 943 as the last wiTl and testament of the said deceased, and that let- ters testamentary be issued to T. M. and G. B., according to the prayer of their petition, filed on the said eighteenth day of April, jQo6. NOTE. — If an attorney represents all interested parties, he donbtless may consent to the probate of a will so that it is not subject to contest: Cal. a C. P^ 8CC. 283. WRIT. No. 1576. — Writ, Review of — Certiorari. [Title of Court and Cause.] The People of the State of California, to /. C. P., Justice of the Peace in and for said City and County: Whereas, it manifestly appears to us by the affidavit of /. P., the party beneficially interested, that in a certain action pending before you, against /. H. and J. P., at the suit of said J. P. against H. and P., you, exercising judicial functions, have exceeded your jurisdiction, and that there is no appeal nor any other plain, speedy, and adequate remedy ; and being therefore willing to be certified of the said action or proceedings : We therefore command you, that you certify fully and send to our superior court of the city and county of San Francisco, Department No. i, at the courtroom thereof, in the city and county of San Francisco, on the tenth day of November, ipo6, a tran- script of the record and proceeding in the action aforesaid, to wit : [The complaint, summons, demurrer of defendant to the com- plaint, t}\e order overruling the said demurrer, and the judgment of the court.] With all things touching the same as fully and entirely as it remains before you, by whatsoever names the parties mav be called therein, that the same may be reviewed by our said superior court, and in the meantime we command and require the said /. C. P., justice of the peace, and his court, to desist from further proceedings in the matter so to be reviewed. NOTE.— California, C. C. P., sees. 1070. 1071; Alaska, Codes, pt. 4, e. 55, sec. 542; Arizona, C. C, par. 432; Idaho, C. C. P., see. 3757; Mon- tana, C. C. P., sec. 1940; Nevada. Corap. Laws, sec. 3530; New Mexico, Comp. Laws, sec. 2804; North Dakota, C. C, sec. 6099; Orejion. Codes and Statutes, sec. 596; South Dakota, C. C. P., see. 757; Utah, Rev. Stats., sec. 3629; Washington, Ballinger's Codes, sec. 5742. 944 New Book of Forms. No. 1577. — Writ — Assistance of. [Title of Court and Cause.] The People of the State of California to the Sheriff of the County of San Mateo, Greeting : Wliereas, by a judgment and decree of this court, it was, among other things, adjudged and decreed that the purchasers at the ser- iff's sale of the premises in said decree described as follows, to wit [description], should, on the production of the sheriff's deed, be forthwith put into possession of the above-described premises ; And whereas, said sheriff has issued to the purchaser at such sale, viz., /. W., his, said slieriff's, deed therefor, which said land and premises are now in possession and occupation of said R. R.; And whereas, by an order of this court, made in the said action, on the tenth day of July, ipo6, it was ordered that a writ of as- sistance should issue to you, the said sheriff, to put the said /. W. in possession of the said piece or parcel of land, and him in pos- session thereof from time to time to maintain and defend : Therefore, we command you, that immediately after receiving this writ, you go to, and enter upon the said piece or parcel of land, and that you eject and remove therefrom all and every per- son or persons holding or detaining the same, or any part thereof, against the said /. IV., and that you deliver to the said /. W., or his assigns the possession of the said piece or parcel of land with- out delay; and him, the said /. PV., in such possession thereof, from time to time, maintain, keep, and defend, or cause to be kept, maintained, and defended, according to the tenor and true intent of the said decree and order of the said court. NOTE. — California, C. C. P., sees. 682, 1210-1254. This writ, in sub- stance, is applicable in all states. In section 380, Code of Civil Pro- cedure, the same widt is referred to as a writ for the possession of premises. It is frequently referred to in reported cases as a "writ of possession." Necessarily a court clothed by a constitution or statute with authority to hear and determine a right or redress a wrong has a right to issue and enforce all necessary writs to enforce its jurisdiction with &r without legislative authority. No. 1578. — Writ — Possession, [Title of Court and Cause.] The People of the State of California to the Sheriff of the County of Marin, Greeting: Whereas, on the twenty-fifth day of April, igo6, J. D., as plainr- tiff, recovered a judgment and decree in the said superior court Writ. 945 of the county of Marin, state of California, against R. R. as de- fendant, for tlie possession of certain premises in said judgment and decree, and hereinafter more particularly described, and also for the sum of $340 damages for the detention of said premises, besides the sum of $76.23 costs of suit, as appears to us of record ; And whereas, the judgment-roll in the action in which said judgment was entered is filed in the clerk's office of said court, in the county of Marin, and the said judgment was docketed in said clerk's office, in the said county, on the day and year first above written : Now, therefore, you, the said sheriff, are herdjy commanded and required to deliver to the said plaintiff /. D. the possession of the lands and premises in said judgment and decree described, as follows, to wit: [Description.] And whereas, the sums of $540 damages and $76.23 costs are now (at the date of tliis writ) actually due on said judgment: You, the said sheriff, are hereby further required to make the said sums due on the said judgment, for damages and costs, and all accruing costs, to satisfy the said judgment, out of the per- sonal property of said judgment debtor; or, if sufficient personal property of said debtor cannot be found, then out of the real property in your county, belonging to him on the day whereon said judgment was docketed, in the said county, or at any time thereafter; and make return of this writ within thirty days after your receipt thereof, with what you have done indorsed hereon, (All courts.) NOTE, — California, a C, P., sec 380, No, 1579. — ^Writ — Restitution, In the Superior Court of the City and County of San Frarp- cisco, State of California. [Title of Court and Cause.] The People of the State of Caiifornia, to the Sheriff of the City and County of San Francisco, Greeting: Whereas, on the eleventh day of January, igo6, T. J., plaintiff, recovered a judgment in the said superior court of the citv and county of San Francisco, against P. McC. for the restitution of certain premises in said judgment and hereinafter described, and also for the sum of tivo hundred and forty dollars, treble rents for the detention of said premises, one hundred dollars damages, and sixteen dollars costs of suit, as appears to us of record, and which judgment was docketed in the clerk's office of said court on the New Forms — 60 94^ Ne;w Book op Forms. tzvdfth day of January, ipo6 [or that "a transcript of the docket of said judgment was filed in the oihce of the county recorder of the county of Alameda, on th^ fourteenth day of January, i^K)6"^ : Now, therefore, you the said sheriff, are hereby commanded to deliver to the said T. J. the possession of the lands and premises in said judgrnent, described as follows: [Description.] And whereas, the sum of two hundred and forty dollars treble rents, on^ hundred dollars damages, and sixteen dollars costs, are now, at the date of this writ, due on said judgment, you the said sheriff, are hereby further required to satisfy said judgment, and all accruing costs, out of the personal property of said judgment debtor, F. McC; or, if sufficient personal property of said debtor cannot be found, then out of the real property in your county be- longing to him on the day whereon said judgment was docketed in the aforesaid city and county, or at any time thereafter ; and make return of this writ within tzventy-Uve days after your receipt hereof, with what you have done indorsed hereon, (All courts.) NOTE. — In California, if the jndgment be for the delivery of the possession of real or personal property, it must require the sheriff to deliver the possession of the same, describing it, to the party entitled thereto, and may, at the same time, require the sheriff to satisfy any costs, damages, rents, or profits, recovered by the same judgment, out of the personal property of the person against whom it was rendered, and the value of the property for which the judgment was rendered to be specified therein if a delivery thereof cannot be had; and if suf- ficient personal property cannot be found, then out of the real prop- erty, as provided in the fijst subdivision of this section: CaL C G. P^ sec. 682, subd. 5. No. 1580. — Writ — Habeas Corpus, [Title of Court and Cause.] In the Superior Court of the County of San Joaquin, State of California. The People of the State of California, to /. T. R., Sheriff of the County of San Joaquin, Greeting : We command you, that you have the body of P. S., by you im- prisoned and detained, as it is averred, together with the time and cause of such imprisonment and detention, by whatsoever name said P. S., shall be called or charged, before C. V. R. P., judge of the superior court of the state of California, at the courtroom of said superior court, county of San Joaquin, on the twenty-first day of April, i(jo6, at 2 o'clock in the afternoon of that day, to do and receive what shall then and there be considered concerning the said P. S.; and have you then and there this writ. NOTE.— California, Pen. C, see. 1477. Writ. 947 [Or zre command yon in person, and not by deputy or agent, to haz'c the body of P. S., by you detained as the petition filed in this proceeding avers; and at the same time you are commanded to state in zvriting, in your return to this writ, the cause of your im- prisonment or detention of said P. S. [if the person detained is knotvn by some other name, then add\ by zvhatever name said so- called P. S. is known; the said P. S. to be brought before the Hon- orable F. II. K., judge of the superior court of the city and county of San Francisco, state of California, on the third day of July, 1906, at 2 o'clock in the afternoon of that day, to the end that jus- tice may be done.] And you are commanded to have then and and there this writ, with your return indorsed thereon or annexed thereto; [or, if the prisoner is to be brought before the highest court of the state, add:] before our justices of our supreme court at, etc.; or immediately after the receipt of this writ [or instantly upon the receipt of this writ], you are commanded to bring, etc., before our said justices who are at this moment sitting as a court awaiting the return of this writ [or before one or more of said judges or justices]. RETURN TO BE IXDORSED ON OR ANNEXED TO THE WRIT. In obedience to the within [or annexed writ], I certify and return to [the court or officer ordering the zvrit]* that before the coming of said writ to me, namely, on etc., at, etc. [state the com- mitment, if any, annexing a copy thereof to the return, and detail the facts] ; to all of which I certify and have here with me the body of said P. S., as by the said writ commanded. [Or as in the above return to asterisk] that neither at the time of the allowance of said writ, nor at any time since, was the said P. S. in my custody, nor was he restrained by me of his lib- erty ; wherefore I cannot have his body before [the court or officer ordering the writ], as by said writ I am commanded. NOTE.— Cal. Pen. C, socs. 1480, 148?.. This form of writ is not loeal. It may be said that the law applicable to it is coextensive with the United States. As a general rule, its function is to inquire into the ac- tion of a conrt, board, or officer allegfed to be proceeding in excess of its jurisdiction. A person rog-ularly in custody cannot be discharged on habeas corpus. Before the writ will issue, it must be shown to the sat- isfaction of a court or judge that the imprisonment, detention, or com- mitment are without authority of law. If the complaint or indictment does not charge a crime, or if there has been a conviction for an act not a crime, then the writ will issue. It is also used to liberate wit- ne.ssrs unrea^sonably detained to insnre their appearance to testifv in criminal eases. Questions of irregularity at trial, or relating to con- victions will not be reviewed on habeas corpus. When the ground for the writ is alleged to be that a prisoner has been committed without probable cause, the evidence taken at the examination must be sot out In such form that perjury may be assigned upon false allegations. It is insufficient to aver generally that no evidence waa taken showing. 948 New Book of Forms. or tending to show, the prisoner's gnilt. If the application is to be admitted to bail pending appeal, the facts must be stated in such form as will enable the court to determine whether an injustice has been done the prisoner. The illegal imprisonment must be shown as contra- distinguished from a statement of a conclusion of fact, or law. The petition for the writ should state all the facts in a full though concise manner, leaving nothing that courts will not take judicial notice of to inierenee or conjecture. See Petition for Writ of Habeas Corpus. No. 1581. — Writ of Review — ^Application for. In the Supreme Court of the State of California. State of California, City and County of San Francisco, — ss. A. B. C, having first been duly sworn, deposes and says: I. That heretofore, to wit, on September 18, ipoj, a complaint was made and filed in and with the clerk of the police court of the city and county of San Francisco, state of California, and in Department No. 4 thereof, in which D. E. F. then presided and still presides as the judge thereof, of which complaint the follow- ing is a copy : [Title of Court and Cause.] [Then set out in full the complaint, or other proceeding, part or all of the subject, etc., to be reviewed, including verification, if any, indorsements and record marks.] That under and on said complaint process was duly issued, and deponent (who is the A. B. C. in said complaint named) arrested and brought before said court and department, and the matter of said complaint against him set for trial therein. On the 20th day of November, 1905, the said matter of said complaint came on for trial in said court and department and before said D. E. F., as the judge thereof, and deponent having challenged the suffi- ciency of said complaint as not showing that any public offense had been by him committed, and that challenge having been by said court and judge thereof then and there denied (and it was so denied), pleaded not guilty to the charge in said complaint made. Thereupon the trial of deponent upon said charge in said com- plaint made was had in said court and before said judge thereof (a jury trial having been waived), and, after hearing the evidence introduced (and evidence was so introduced) against and by de- ponent, the said court and judge thereof found and adjudged de- ponent guilty of said charge, and after denying deponent's motion in arrest of judgment then and there by him made, namely, on No7'ember 2^, 1905, sentenced him to pay a fine of one hundred dollars, or, in lieu of said payment, to be imprisoned in the county Writ. 949 jail of said city and county for a period of fifty days, unless said fine was sooner paid. Said finding and sentence was thereupon duly entered in said police court as the judgment thereof in the said matter of said complaint against this deponent. 2. Thereafter, to wit, on November 24, 1905, deponent served upon the district attorney of said city and county, and filed with the clerk of said police court and department thereof, his, de- ponent's, notice of appeal to the superior court of said city and county of San Francisco from and to the efTect that he did appeal to said superior court from said judgment of said police court and from the whole thereof. That thereafter, to wit, on November 25, ipoj, the deponent prepared and the said judge of said police court settled and allowed and filed with the clerk of said police court, the statement of said case against deponent in said police court required, and as required by law, and of which said state- ment the following is a copy : [Title of Court and Cause.] [Then set out the statement of the case above referred to, and ordinance, statute, order, etc., to which objection is made.] Immediately upon conviction defendant made a motion for a new trial upon the grounds, first, that the verdict of the court (a jury trial having been waived) is contrary to the evidence; and also upon the ground, second, that the verdict is contrary to law. Motion denied. Exception taken. On November 24th, defendant was, upon said conviction sen- tenced to pay a fine of $100, and to be imprisoned in the county jail for a period of fifty days, unless said fine was sooner paid. The evidence established the facts to be as follows : [Set out the facts in full, and omit all evidence upon which the facts depend.] (Signed) A. L., Attorney for Defendant. [Then insert the judge's certificate settling the statement.] That all of said matters so contained in said statement of the case are true, and are herein repeated and affirmed, and prayed to be taken and considered as herein newly and independently pleaded as part of this deponent's application for a writ of review. 3. That thereupon the said appeal of deponent to said superior court from said judgment of said police court was duly perfected as by law required, and the record thereof on such appeal by law provided sent to and filed in said superior court. 4> Thereafter the said appeal and the matter thereof was pre- sented and heard in and by said superior court, and before three fudges thereof sitting in bank, this deponent (there the appellant) 950 New Book of Forms. challenging variously and fully the validity of said ordinance upon which said complaint in said police court was based, and asking that said judgment of said police court be reversed and said com- plaint against deponent dismissed. Nevertheless the said superior court, so sitting in bank as aforesaid, thereafter, to wit, on Decem- ber 21, ipoj, rendered its judgment on said appeal, affirming, and whereby it affirmed, said judgment of said police court. 5. That thereupon a copy of the order of said superior court affirming said judgment of said police court was remitted to said police court and filed with the clerk thereof, and thereafter, to wit, on December 2j, i(^o^, said police court and said D. E. F., as the judge thereof, made and entered an order therein in the matter of the said complaint against this deponent that said judg- ment of said police court of November 24, ipo^, having been by said superior court affirmed on appeal to it, be carried into effect, and that deponent pay said fine of Ofie hundred dollars, or be im- prisoned in said county jail for a period of fifty days, unless said line had been sooner paid. Said judgment now exists as above stated, not reversed, vacated nor set aside, and said fine has not been paid nor said term of imprisonment yet enforced. Said superior court, in rendering its decision on said appeal made to it as aforesaid, suggested and recommended that the questions of law therein and here involved and raised be presented to and passed upon by this court under a writ of review, as is hereinafter prayed. And deponent now says and represents to this court that said police court and said D. E. F., as the judge thereof, has, in ren- dering and entering said judgment against deponent, acted with- out and in excess of the jurisdiction of said court and judge, in that the matters stated in and charged by said complaint to have been committed by this deponent were not, and do not, constitute a public or criminal or other offense — the ordinance of the board of supervisors of said San Francisco, purporting to make the [state the act constituting the crime] in said San Francisco such an offense, and under the provisions of which said complaint was made, and said judgment given being invalid and beyond the power of said board of supervisors to enact, especially in this : a. The power and jurisdiction in said ordinance attempted to be exercised has not been, by constitution or statute, granted to said board of supervisors, nor is it inherent in said board as a municipal corporation or otherwise. b. Said ordinance is in conflict with the general laws of this state. c. Said ordinance is unreasonable, in that it would operate an unnecessary restriction upon the [here state fully and separately, Writ. 951 how the law would operate to injure the person or property of the petitioner, and conclude as follows:] Deponent further says that he has exhausted his right of aj>- peal from said judgment of said police court, and judge thereof, without redress, as hereinbefore stated; and that said judgment and sentence thereunder will be carried into effect and deponent fined or imprisoned as said judgment requires, unless said judg- ment and proceedings leading thereto be reviewed by this court. Deponent applies to this court in the first instance for such re- view, because ihe superior court of said city and county of San Francisco has, while sitting in bank on tlie said appeal as afore- said, passed upon all the questions of law involved in the review here sought, adversely to deponent, and an application in the first instance to said superior court for a writ of review of said judg- ment and proceedings of said police court and judge thereof ■would be an idle and useless proceeding. Deponent therefore prays that said D. E. F., as the judge of said police court and department thereof, be by the court required to certify to this court at a specified time and place a full tran- script of the record and proceedings leading up to and including said judgment, and sentence thereunder for review herein, and that thereupon the court review and annul the same. Also that the said sentence and proceedings thereunder be in the mean- time stayed. Verified. NOTE.— California, C. C. P., sees. 1067-1077. No. 1582. — Writ — Ordered to Issue by Supreme or Superior Court to Inferior Court and Certify smd Return a Tran- script of Its Record for Review. [Title of Court and Cause.] On reading and filing herein the affidavit and application of A. B. C. for a writ of review to be issued by this court to D. E. F., as judge of the police court of the city and county of San Francisco, state of California, requiring him to certify to this court a transcript of the record and proceedings in the matter of the "People etc. vs. A. B. C," in said aflfidavit mentioned, on the ground therein stated that in said proceedings against said A. B. C. the said police court and judge thereof acted without and in excess of their jurisdiction, it appearing from said aflS- davit that the writ therein prayed for should be issued ; It is ordered that a writ issue out of and under the seal of this court addressed to D. E. F., as judge of the police court of the city and county of San Francisco, state of Californus, command- 952 New Book of Forms. ing him to certify and return to this court at its session in said city and county of San Francisco on the 3d day of June, 1905, at 10 o'clock A. M., a full and complete transcript of the record, judgment and proceedings in that certain matter pending in said police court, entitled "People of the State of California vs. G. R. F.," to the intent that the same be reviewed by this court as to said claim of said petitioner that said proceedings and judgment in said matter was without or in excess of the jurisdiction of said police court and of said judge thereof. NOTE.— Calixornia, C. C. P., sees.' 1067-1077. No. 1583. — Writ — Attachment — Property. [Title of Court and Cause.] The People of the State of California, to the Sheriff of the Comity of San Mateo, Greeting: Whereas, the above-entitled action was commenced in the su- perior court of the county of San Mateo, state of California, by the plaintiff in the said action, to recover from the defendant in the said action the sum of five hundred dollars, gold coin of the United States, besides interest at the rate of one per cent per month, from the eighteenth day of December, igo6, and costs of suit; and the necessary affidavit and undertaking herein having been filed as required by law : Now, we do therefore command you, the said sheriff, that you attach and safely keep all the property of said defendant, within as may be sufficient to satisfy the said plaintiff's demand, as above as may be sufficient to satisfy the said plaintiff's demand, as above mentioned ; unless the said defendant give you security, by an undertaking of at least two sufficient sureties, in an amount suffi- cient to satisfy such demand, besides costs, or in an amount equal to the value of the property which has been or is about to be at- tached : in which case you will take such undertaking, and hereof make due and legal ser^dce and return. NOTE.— California, C. C. P., sec. 540; Alaska, Codes, pt. 4, c. 14, sec. 138: Arizona, C. C, par. 341; Iflaho, C. C. P., see. 3297; Montana, C. C. P., see. 891; Nevada, Comp. Laws, see. 3221; New Mexieo, Oomp. Laws, sec. 2696; North Dakota, C. C, sec. 5355; Oregon, Codes and Statutes, see. 297; South Dakota, C. C. P., sec. 208; Utah, Eev. Stats., see. 3069; Washington, Ballinger's Codes, sec. 5351; Wyoming, Eev. Stats., sec 2989. Writ. 953 No. 1584. — ^Writ — Arrest — Witness. [Title of Court and Cause.] The People of the State of California, to the Sheriff of said City and County, Greeting: You are hereby commanded, forthwith, to attach the body of /. D., defaulting witness, and have him before our said court on Tuesday, the nineteenth day of January, igoj, then and there to show cause why he should not be punished for contempt, in dis- obeying a subpoena of this court duly served on him, summoning him to appear in this court as a witness on the eighteenth day of January, igo6. (All courts.) NOTE.— California, C. C. P., sec. 238. No. 1585. — Writ — Juror — Attachment. [Title of Court and Cause.] You are hereby commanded, forthwith, to attach the body of 5*. L. P., and bring him before the superior court of said city and county of San Francisco, to receive judgment of said court for failing to attend and serve as juror in said court, after being per- sonally served with a summons to attend. Witness Honorable F. H. K., judge of the said superior court, this fourth day of January, ipo6. (All courts.) NOTK — California, a a P., sec. 1993. 954 New Book of Forms. WEITTEN INSTRUMENT— ALTERATION OF. No. 1586. — Written Instrument — Alteration of Subsequent to the California Codes. San Francisco, CoMfomia, . .VT^r^^Vft^ »? . . « JigO - \jl^'f\,C^ . . . {jffjJL^'Cru^ . a^ier daie, fin UL i ?u i '-^nuii' K L'iij rfffCc r . rr?r;^.. . , . - nv ordot^; the svm of . . . . ^^ : i u/^ ^. - . !??r*! . . .'^?U^:i^^i-n-:^ Dollars, in 6^»j^^^^^€!#w»^gf--^ w^^ - g " ^j ■ o ^! ^ -l g ^gg ^ ^ th f> pfosoni efftnd a rd of i & oight and finortco a , wvth interest thereon from date until paid, at the rate of .^,\^ ^. . . . . per cent, per ^^C<^fi^. in like Gold Coin, payable . .^^^»^:»vv< ^-ri^fCy. . and \f not eo paid^ tJH) (jnt erec t chali be — €bdd&d 4& iko - pri n cipal and ohall bcaf - lih e jntcrcG J , and the wfeo/g noio ohaU,"at the ■ optiof ^ of the ho l d-o t*, wiihout notwo to the mako f^ ther eo f , boco t no dtto and coUoctahlo : Alteration of Written Instntments — Code Law. — The party producing a writing which has been altered, or appears to have been altered, after its execution, in a part material, must account for the appearance- He maj' show that it was made by another, without his concurrence, or was made with the consent of all the parties, or otherwise properly or inno- cently made, or that the alteration did not change the meaning of the instrument. If he do that, he may give the writing in evidence: CaL C. C. P., sec. 1982. A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise: C. C, sec. 1698. The alteration or destruction of a duplicate copy while the other ex- ists is not within the provisions of Civil Code, sections 1698, 1701. Written Instrument — Alter.vtion op. 955 Alteration of Written Instraments. — "Alteration" of an a^eement docs not ncf'pssarily mean a change of contract; it means that an instru- ment in writing has been changed in form since its execution. In many digests alterations of written instriiments after execution by one or more, but not all, of the parties to it, are lumped with modifica- tions, extensions, and changes of every description by subsequent con- tract of all the parties. Necessarily such work makes it difficult to dis- cover every case in which the subject has been passed upon by courts of appeal; but it is a s'ltisfaction to be able to state that it is thought that every important reported case decided by the supreme court of the United States and the sunreme court of the state of California has been examined prior to the writing of this note. What fnl|ov,'s wns written as an introduction to Part First of this book and discarded, because it did not refer to any particular form, and for that reason was not germane to the subject of Forms; but when the book was so far advanced that there was no place for it at the opening, a place was dir.covered for it as a note to an altered promissory note. An alteration, in mere words, of an instrument, after it is written, is rot void if made innocently or by consent of the parties. The practice is to note the changes on the margin or at the bottom of the instru pi-nt, and to initial the correction by a notary public. If the signing parties initial the changes, that precaution is not valueless, because hand- writing is of some value as evidence, but when the writing is recorded, the writing disappears and the record becomes, for most practical pur- poses, the original instrument. It is not permissible to make erasures in a book of records that it may conform to the original document. When the altered instrument is recorded it is returned to the person at whose request the record was made; possibly the author of the erasures, and he ought not have it. Form No. 1586, not appearing to have been altered after execution, a party offering it need not account for its appearance: Sedgwick v. Sedgwick, .56 Cal. 213. Prior to the Sedgwick case, alterations, if ma- terial, put the burden of proof on the party claiming under it. Alterations — Effect of. — Section 1982 of the California Code of Civil Procedure took effect in 1872. Before that section became law, unless material alterations in written instruments were noted on the instrument, the holder was obliged to account for the alteration. In Still v. Reese, 47 Cal. 294, it was said an alteration made after signing, if made inno- cently, and to make the instrument conform to the intention of the par- ties is not void, even if the alteration is not noted. In Roberts v. Unger, 30 Cal. 676, it was said an alteration would not void an instrument if evidence was produced to show that it was made before it was signed. In Galland v. Jackman, 26 Cal. 80, 85 Am, Dec. 172, it was said that if evidence was not produced to show how and why a material altera- tion was made, the instrument would be read as it was before the altera- tion was made. In Turner v. Billagram, 2 Cal. 520, it was said that no alteration will defeat a written instrument unless it materially affects the rights of an obligor, or is the result of a fraudulent intent to do so. If a tax deed appe^irs upon its face to have been altered in a material respect after its execution, it is not admissible in evidence: Miller v. Loco, 80 Cal. 257, 22 Pac. 253. An official bond was executed and signed by sureties. After execution "R. " was, by the other sureties, stricken out as one of the sureties. It was held that the erasure did not nullify the bon^L Los Angeles v. MeUus, 59 Cal. 444. 956 New Book oi' Forms. A bond was, by mistake, made to a sheriff instead of a party to be protected by it; the name of the sheriff was erased and that of the party inserted. Bond was held to be good: Turner v. Billagram, 2 CaL 520.' After the execution of an indemnity bond to a sheriff, "C. J. H. " was erased, and "J. M. B. " was substituted as the claimant of the property; and then once more changing it by restoring " C. J. EL" and erasing "J. M. B." Bond upheld: Rogers v. Shaw, 59 Cal. 260. An alteration in a promissory note which does not vary the contract is immaterial: Humphreys v. Crane, 5 Cal. 173; First Nat. Bank of Oak- land V. Wolff, 79 Cal. 69, 21 Pac. 551, 748. If a disinterested person who has no authority to make an alteration in an instrument makes one, it does not change the writing: Langen- berger v. Kraeger, 48 Cal. 147, 17 Am. Kep. 418. If made bv consent of the parties, it does not invalidate: Anderson V. DoU, 27 Cal. 607. If a printed form is used, it will be presumed that the erasure was made before the execution of the instrument: Corcoran v. Doll, 32 CaL 82. After an award has been made, the arbitrators cannot alter it even to correct mistakes, without the consent of the parties: Dudley v. Thomas, 23 Cal. 365. Filling a blank in a note as to the rate of interest is not such an alteration as will vitiate it; but it does not bind the maicer as to the rate filled in, and docs not avoid the payment of legal interest: Fisher V. Dennis, 6 Cal. 577, 65 Am. Dec. 534. An account-book is sometimes classified as an instrument in writing. Such a book contained the following entry: "June 30, 1859, P. W. S. credit, by cash, $135.00." In October, -1859, the bookkeeper altered the entry by crossing out "by" and inserting "to" in its place, and changed the word "credit" and inserted "debtor" in its place; all without the knowledge or consent of P. W. S. No explanation being offered, the court allowed P. W. S. the credit as entered June 30, 1859: Sheile v. West, 17 Cal. 324. When a check drawn against money in bank is altered after it has left the hands of the drawee, by increasing its amount, the drawee may recover from an innocent holder, to whom it was paid, the excess over the true amount of the check. If on its face there is enough to cause suspicion o fraud, or if the drawee has information sufi&eient to cause a prudent person to suspect that the check has been altered, he cannot recover: Ecddington v. Woods, 45 Cal. 406, 13 Am. Rep. 190. As to partnership books, c partner has no right to alter them and then offer them as evidence until the alteration has been satisfactorily accounted for: Butler v. Beech, 55 Cal. 28. If a note secured by mortgage is afterward so far changed as to lose its identity, the mortgage cannot be enforced as against subsequent en- cumbrancers: Poett V. Steams, 31 Cal. 78. (That was said in Poett v. Stearns, but was not there decided. A promissory note at its best being only evidence of a debt, and a note not being a necessary part of a mortgage, it is not clear why it was mentioned at all.) A promissory note was altered by changing the date from "1871" to "1870." It not appearing that the alteration was made after the exe- cution of the note, it was upheld: Sedgwick v. Sedgwick, 56 Cal. 616. Alteration — Effect of. — After a note was executed it was altered with- out the consent of indorsers so as to make it payable in the state of New York. The indorsers were, by such alteration, discharged: Pelton V. San Jacinto Lumber Co., 113 Cal. 21, 45 Pac. 12. Written Instrument — Alteration of. 957 The general rule that a material alteration avoids a contract even in the hands of innocent holders has application to cases where the altera- tion is by the payee or party seeking to enforce the contract. If the alteration is by a stranger to the contract, the rule does not apply. Any unauthorized change in commercial paper, deeds, and other "sealed" instruments destroys the integrity of the instrument as the contract which the maker has executed: Walsh v. Hunt, 120 Cal. 4G, 52 Pac. 115. This case is broadened somewhat by an inadvertent use of the word "sealed." The altered instrument in that case was a promissory note not under seal. In California there is no distinction between sealed and unsealed contracts: C. C, sec. 1629. Unauthorized material change in an instrument, in the hands of an innocent holder, destroys it as the contract executed by the maker. This rule applies to all commercial paper, deeds, etc., and sealed instru- ments: Walsh V. Hunt, 120 Cal. 47, 52 Pac. 115. A guarantor is released by any material alteration of the terms of his guaranty without his consent: Driscoll v. Winters, 122 Cal. Go, 54 Pac. 387. The same rule applies to Lureties on a bond. In this case it was an appeal bond: Clarke v. Mohr, 125 Cal. 540, 58 Pac. 176. Under section 1698, Civil Code, a promissory note is a contract, and can only be altered by a contract in writing or by an executed oral .isrreement: Thompson v. Corner. 104 Cal. 168, 43 Am. St. Kep. 81, 37 Pac. 900. That section of the code and case appear to be broad enough to uphold any interlineation or erasure, provided it was agreed in writ- ing that it might be made, or if it was orally agreed that it might be made. Alteration — Effect of. — In United States supreme and other courts, when iL is established tliat an instrument has been altered, the material- ity of the alteration or erasure is a question for a court to decide: Wood v. Steele, 6 Wall. 83; but it is for a jury to say whether an alteration has been made: Steele's Lessee v. Spencer, 1 Pet. 560. The alteration to avoid an instrument must be harmful; there it is said that the addition of a surety to a promissory note, without the consent of the maker, does not discharge him: Mersman v. Werges, 112 U. S. 141, 5 Sup. Ct. Rep. 65. An alteration apparent on the face of an instrument does not avoid it unless shown to have been made fraudulently or without consent of parties: Speake v. United States, 9 Cranch, 37. A holder of materially altered commercial paper cannot fall back upon the paper as it was when executed, because such alteration annuls the instrument: Wood v. Steel, 6 Wall, 82; and it is said in the same case by way of example, "that the law regards altered commercial paper as forged paper, and the doctrine of 'innocent holder does not' apply there- to": See to same point, Angle v. N. W. Mut. L. Ins. Co., 92 U. S. 342. A deed with description altered after delivery and recording is not effective as to alterations until re-execution: Moelle v. Sherwood, 148 U. S. 27, 13 Sup. Ct. Rep. 426. The same case, in referring to the laws of Nebraska, says there: "If valid between parties when altered after record, is void against deeds already recorded by subsequent purchasers without notice." Those claiming under altered instruments which appear on their faces to have been altered must explain the alteration if the alteration is al- leged by the opposite party: United States v. Lynn, 1 How. 112. The presumption is that alterations were made before execution: Lit- tle V. Hemdon, 10 Wall. 31; Hanrick v. Patrick, 119 U. S. 172, 7 Sup. Ct. Rep. 147. A clerk has no authority to alter the record of his certificate of ac- knowledgment after the record was made. Money paid by mistake, on raised or altered check, neither party being at fault, may be recovered: 958 New Book of Forms. Espy V. Bank of Cineinnati, 18 "Wall. 615; but if either party has been ^:lty of negligence whereby the other has been injured he most bear the loss: Elliott v. Piersal, 1 Pet. 341. The fact of negligence in such cases is to be left to the jury: Leather etc. Bank v. Morgan, 117 U. S. 122, 6 Sup. Ct. Rep. 657. Husband and wife executed note to secure mortgage by husband and partner, and indorsed by partner. Partner adds partner's name to ■R-ife's to the note without laer or her husband's consent. Good as against one lending money on note: Mersman v. Werges, 112 U. S. 143, 5 Sup. Ct. Rep. 65. Adding Names. — Adding name of surety without the consent of the maker is a material alteration: Mersman v. Werges, 112 U. S. 139, 5 Sup. Ct. Rep. 65. Substitution of Surety. — A surety signed and delivered a note. The maker obtained the signature of another surety instead of the one agreed upon. Held not to be a material alteration: Ward v. Hacket, 44 Am. Rep. 1S7. Payee Signing Note. — After a maker delivered his note to payee, the payee, without the maker's knowledge, signed it as security and indorsed tuc note; not material alteration: Morgan v. Vandermark, 1 White & W. Civ. Cas. Ct. App., sec. 511. Alteration of Name of Payee. — Erasure of payee's name and substitu- tion of another after delivery is material: Horn v. Newton City Bank, 32 Kan. 518, 4 Pac. 1022. Mistake Corrected. — A sheriff took a bond to dissolve an .attachment, and after execution altered the Christian name. Held, not material: State v. Dean, 40 Mo. 464. Consideration. — A promissory note did not state that it was for a consideration, nor for value received. An alteration stating a considera- tion was material: Law v. Argrove, 30 Ga. 129. Joint and Several Liability. — Altering a note so as to read "We prom- ise" from "I promise" is not material: Eddy v. Bond, 36 Am. Dec. 767. Interest Clause in Note. — The additional words, "with interest from date," is a material alteration: Brown v. Jones, 3 Port. 420. Gold Clause in a Note. — Adding it is material as to surety: Hanson v. Crawley, 41 Ga. 303. Demand and Notice Waived. — Writing over an indorsement in blank the words "demand and notice waived" is a material alteration: An- drews V. Simms, 33 Ark. 771. Conveyances. — The addition of property to the description in a deed is a material alteration: Moelle v. Sherwood, 148 U. S. 21, 13 Sup. Ct. Rep. 426. Bonds. — Interlineation in a bond prescribing additional duties is a material alteration: Miller v. Stewart, 4 Wash. C. C. 26. Alteration of date in a bond after execution from " day of Dec, 1823," to "3d day of May, 1824," is immaterial: State v. Miller, 3 Gill. 335. Date of Note. — Change in date of a note is material, whether the time of payment is extended or hastened: Brown v. Straw, 29 Am. Rep. 369. Place of Payment. — Alteration of place of payment is not material: Major v. Hansen, 2 Biss. 195. Erasure of the place of payment is material: White v. Hass, 70 Am. Dec. 548. The addition to a note of a particular place of payment is material: Southwark Bank v. Gross, 35 Pa. St. 80. Written Instrument — Alteration of, 959 Blanks, Filling. — Tt is not an altpration of an inBtmmont to fill a blank: Vishrr v. Wohstrr, 8 Cal. 109; Smith v. Crocker, 5 Mass. 538; Brisco V. Reynolds, 51 Iowa, 672; Stahl v. Borgt-r, 13 Am. Dec. 666. The place of payment was left blank in a note. It was orally agreed that it was not to be sued or collected at any place than the residence of the maker. After execution the payee filled in the blank by insert- ing the name and location of a bank. A material alteration: Charlton V. Reed, 47 Am. Rep. 808. Signature Altered. — Note signed "H., Treasurer of St. Paul's Parish." altered so as to read "IT., Treasurer for St. Paul's Parish," held a mate- rial alteration: Sheridan v. Carpenter, 61 Me. 83. The addition of an initial letter to a signature to a note is a material alteration: King v. Rea, 13 Colo. 69. 21 Pae. 1084. Writing "Security" over indorser'a name without his authority dis- charges him: Id. Wnting the residences of indorsers after their names is not material: Struthers v. Kendall, 80 Am. Dec. 610. Addiug the word "Agent" to the signature of a note at the request of the pavee without the consent of the indorser is material: Bank v. Follett. 23 Am. Rep. 418. Erasure of Signature. — The erasnre of the name of one of the obligors of an official bond is material: Smith v. U. S., 69 U. S. 219; State v. Blair, 32 Tnd. 313. Erasure of Other Words. — Erasing the word "surety" after the name of a signer nf a note before indorsement is material: Laub v. Paine, 26 Am. Rep. 163. Addition to Signature. — .After the signer's name to a note was added, "Trustees of the church." Held not a material alteration, be- cause it does not make it the obligation of the church: Hayes v. Mat- taows, 30 Am. Dec. 226. Alteration of Signature. — The alteration of a note, not before wit- nessed by a person not present at the signing is a material alteration: Homer v. Wallis, 11 Mass. 309, 6 Am. Dec. 169. Memoranda of Extrinsic Facts. — A memorandum indorsed on a bill for porpose of identification is not a mutilation: Manning v. Muronev, 13 Am. St. Rep. 67. As to Amonnt. — If the alteration is not material, the instrument is not affected by it: Kinard v. Glenn, 29 S. C. 590, 8 S. E. 203. As to Rate of Interest, — A memorandum on a note that after a certain day the interest will be less than that stated in the note is not material: Cambridge v. Hyde, 41 Am. Rep. 193. Extension of Time. — An indorsement extending time of payment is not a material alteration: Moore v. Macon Sav. Bank. 22 Mo. App. 684. Erasure of Memorandum. — Tearing away with the obligor's consent a mrmorandum at the foot of a note is not an alteration: Price v. Cockson, 4 Ky. 570. Attached Writines. — A bond to which a writing has been attached is materially altered by tearing it off: Price v. Tollman, 1 N. J. L. 447. A condition affecting a note was written on the stub to which the note was attached in a book of blank notes. The payee after execu- tion tore the note off. A material alteration: Stephens v. Davis, 8.5 Tcnn. 271, 2 S. W. 382. Time of Alteration. — If an alteration is made by one of the makers of a note without the consent of the surety it vitiates it as to him, though made before the note was delivered: Britton v. Dierker, 2 Am. Rep. 553. 960 New Book of Forms. Deed Altered. — ^If the name of a grantee in a deed is filled in a blank left for his name, after its execution, the deed is void: Chase v. Palmer, 29 ni. 306. Alterations — Burden of Proof. — Action was brought on a note. The seal of an indorser was obliterated by a blot of ink, of a color different from the signatures. Held, that plaintiff must show how the seal was obliterated: Organ v. Allison, 68 Tenn. 459. A married woman affixed her signatiTre as an additional obligor to a note, executed and delivered. The burden of showing that she had a separate estate (so that the addition of her signature to the instniment was material) is on him who insists that her signature constitutes an alteration of the instrument: Williams v. Jensen, 75 Mo. 681. "WTiere the controversy relates to whether an erasure of the words "after due" in the printed form, following the rate of interest, was made after or before the execntion of the note, the plaintiff must show that the note, in the shape in which he produces it, was executed an.] delivered by the defendant: Willett v. Shepard, 34 Mich._ 106. If a note does not show upon its face evidence of alteration, the b^ir- den is on the person alleging it to prove it as alleged: Montgomery v. Crossthwait. 24 Am. St. Eep. 832. A plaintiff claimed that a deed under which defendant claims title has been fraudulentlv altered. The burden is on him to show it: Put- nam V. Clark. 29 N. J. Eq. 412. Upon the face of a note appeared the words "ten per cent" in ink, of a different color from that of the body of the note. That fact did not put on plaintiff the burden to show that the words "ten per cent" were made by authority of defendant, or before the execution of the note, in order to recover on the note: .Tones v. Ireland. 4 Iowa, 63. ^ The fact that material words were written in a note with different ink, and in a different handwriting from the body of the note does not cast the burden of proving that there was no alteration, or explaining it, on the plaintiff, the payee: Ault v. Fleming, 7 Iowa, 143. He who pleads a material altera+ion of a contract must prove it: Wing V. Stewart. 68 Iowa, 13, 25 N. W. 905. Tho acceptor of a bill of exchange, defending on the ground of ma- terial alteration, since acceptance, must prove the alteration, if it is not apparent, on the face of the bill. If the alteration is apparent, the burden is on the holder to show that it was made before acceptance: Harris v. Bank of Jacksonville, 22 Fla. 501, 1 Am. St. Rep. 201. In an action on an insurance policy, if defendant claims that an al- teration has been made, and if the policy does not, on its face, show an alteration after execution, the burden is on the defendant to show the alteration: Insurance Co. v. Brim, 111 Ind. 281, 12 N. E._ 315. As a rule the burden of proof is on a party attempting to enforce a contract, to account for a material alteration made in it after delivery, but this does not apply to a defendant in an action brought to have a security canceled upon that ground, if it appears that he is not charge- able with bad faith in regard to the alteration: Town of Solon v. Will- iamsburgh Sav. Bank, 114 N. Y. 122, 21 N. E. 168. Action on a note. The complaint alleges that it was executed under seal. The defendant answers by general denial. In such case the burden is on plaintiff to prove that the note was not altered after delivery, by the addition of a seal: Farmers' Loan & Trust Co. v. Siefke, 144 K Y. 354, 39 N. E. 358. ADDENDA. No. 1587. — Acknowledgment — Oregon — Corporation. State of Oregon, County of Sherman, — ss. On this JO? day of June, igo6, before me appeared A. B., to me personally known, who, being duly sworn [or affirmed] did say that he is the president [or other officer, officers, or agents of the corporation] of [describing the corporation], and that the seal affixed to said instrument is the corporate seal of said corpora- tion, and that said instrument was signed and sealed on behalf of said corporation by authority of its board of directors, and said A. B. acknowledged said instrument to be the free act and deed of said corporation. In testimony whereof, I have hereunto set my hand and affixed my official seal, this the day and year first in this my certificate written. [Title of Officer Taking Acknowledgment] NOTE.— General Laws of Oregon, pp, 115, 1905. No. 1588. — Affidavit that a Defendant is Concealing Himself to Avoid the Service of Summons. [Title of Court and Cause.] State of California, City and County of San Francisco, — ss. C. D., being sworn, says that he is the plaintiff in the above- entitled action. That A. B. is a necessary defendant in said ac- tion. That he has not been served with summons herein, nor has he appeared ; and he cannot be found at his place of residence, or at his place of business, and is concealing himself to avoid the service of summons ; [or, if his place of residence or place of busi- ness cannot be ascertained] that affiant, for the purpose of find- ing said defendant, has made diligent inquiry of his zvife, at his New Forma — 61 (961) 962 Addenda. place of residence, to wit, No. j/^/ Maple street In the said city and county, and among his neighbors, friends and in the corner grocery and saloon nearest his said residence, and has been un- able to ascertain where he can be found. \Mierefore affiant requests the court to order said summons to be served by posting and mailing as by law requested. NOTE.— California, C. C. P., sec. 1167. No. 1589. — Amendment to Pleadings — Justice's Court — Docket Order. [Title of Court and Cause.] After issue joined in the above-entitled action, and before the conclusion of the trial, the plaintiff amended his complaint by striking out the words and figures, "^^75.50," and inserting the words and figures "$2Qy.^o^' ; the said $2Qy.jo being the amount he claimed to be due him from defendant. The defendant then stated, under oath administered to him by me, that an adjourn- ment was necessary so that he could make inquiry as to the jus- tice of said increase in the amount plaintiff claimed to be due, and the court being satisfied that adjournment was necessary, ordered that said amendment be allowed upon the payment of $20.00 to defendant by plaintiff. Plaintiff refused to pay said amount and the trial proceeded. To which order plaintiff then and there excepted. NOTE. — California, C. C. P., see. 859. No. 1590. — Certificate of Residence. State of California, City and County of San Francisco, — ss. A. B., C. D. and B. F., being sworn, say: That they are part- ners, doing business in several cities and counties in said state, under the firm name of "A. B., C. D. & Co." That the place of residence of said firm is the city and county of San Francisco, state of California, and is the place where service of summons may be made upon said firm. NOTE.— California, C. C. P., sec. 1163. Addenda. 963 No. 1591. — Clause in Deed Reciting Former Name of Grantor. In witness whereof, I, A. B. C, hereto set my hand this 5J day of Juyie, jpo6, and say that A. B. A. was the name in which I derived title to the real estate described herein, but which name was changed by my marriage to A. B. C. NOTE.— California, C. C, sec. 1096. It is thought that it would be good practice to insert the facts causing the cbango of name where they would be under the eye of the grantor at the moment of executing the instrument. No. 1592. — Deed — Commencement of Reciting Former Name of Grantor. Know All Men, that I, A. B. C. (formerly F. L. P., under which name I derived title to the real estate hereinafter de- scribed, but which name was changed to A. B. C. by order of the superior court of the county of Butte, entered on the jJ day of Jun^, ipo§, in the records of said court), have granted to [con- tinue as other deeds. See Deeds — Grants — Conveyances]. No. 1593. — Lost Property — Appraisement of. We, the undersigned, appointed to appraise the property de- scribed in the affidavit of A. B. C, on file in the office of A. L. B., justice of the peace of Bolinas township, county of Marin, Cali- fornia [See form No. 274], and described herein as follows, to wit [description the same as in No. 1282], hereby appraise said property at $100. NOTE. — The finder must make and file the affidavit referred to within five days from the finding, with the justice of the peace of the county, whose office is nearest the place of finding, describing the property and time and place of finding, and all the circumstances of the finding. Then the justice summons three appraisers. They examine and appraise the property and describe and deliver to the finder, who must, within five days, have the appraisement recorded in the recorder's office of the county where found: Cal. C. C, sec. 1865. No. 1594. — Order — Deposition to be Taken of Nonresident Witness to Will. [Title of Court and Estate.] At the time fixed for hearing the application of A. B. for let- ters testamentary upon the will of O. B., deceased, it appeared 964 Addenda. that none of the subscribing witnesses to said will reside in the city and county of San Francisco, state of California, and it also appeared that the deposition of A. L., one of said subscribing witnesses, can be taken in the county of Los Angeles, in said state ; it is ordered that the deposition of said A. L. be taken on July J, 1906, before A. P., a notary public at 10 o'clock A. M., and that a photographic copy of the said will be made and pre- sented to said witness on his examination, who may be asked by said notary, or E. L. B., the attorney who presented said will to the court for probate, the same questions with respect to said will, and the handwriting of himself, the testator, and the other witnesses as would be pertinent and competent if the original will were present. NOTE.— California, C. C. P., sec. 1308. No. 1595. — Order Directing Summons to be Served by Fixing a Copy in a Conspicuous Place on the Property Involved in the Action. [Title of Court and Cause.] It appearing to the court that defendant, A. B., is concealing himself to avoid the service of summons in the above-entitled ac- tion; and he cannot he found at his place of residence or business [or. That the place of business of defendant A. B. cannot be as- certained; or, that the place of residence of defendant A. B. can- not be ascertained] : It is ordered that the summons herein be served by aflfixing a copy thereof in a conspicuous place on the property involved in this action, and also by delivering a copy to a person residing on said property, if such person can be found, and also by sending a copy thereof through the mail addressed to the said defendant A. B. at the place where the property is situated. NOTE. — California, C. C. P., sec. 1167. In all such cases the affidavit of service must conform to the provisions of the statute regulating ser- vice of legal documents by mail. No. 1596. — Petition for an Order Directing Administrator to Convey Real Estate. [Title of Court and Estate,] State of California, County of Butte, — ss. The petition of A. B. represents to the court that on Mcty J, jpo4, the said C. D., since deceased, contracted with petitioner. Addenda. 965 in writing, to convey to him all that land described as follows, to wit [description]. I'hat in consideration of said promise peti- tioner then and there paid deceased one thousand dollars, and agreed to pay him one thousand dollars in addition on May 5, 7905, without interest, and also to pay all taxes levied on said land subsequent to May 5, 790^. A copy of said contract is hereto attached and herein referred to, marked Exhibit "A," and made part of this petition. That said C. D. died intestate on the first day of March. 1905, and O. P. was by this court on May j, 7905, appointed adminis- trator 3f the said deceased, and letters of administration were is- sued to him, and he is now tlie administrator of said estate. Wherefore petitioner prays for an order directing said admin- istrator to convey said real estate to him, by an acknowledged grant to him of the balance due as provided in said contract. NOTE.— California, C. C. P., sec. 1598. No. 1597. — Petition for an Order Directing Administrator to Transfer and Deliver Personal Property to Petitioner upon Payment of Balance Due. [Title of Court and Estate.] [The same as No. 1596, omitting taxes, unless it was agreed that petitioner should pay them; and conclude as follows:] Wherefore, petitioner prays for an order directing said ad- ministrator to transfer by bill of sale, and deliver said personal property to him upon payment of the bala.nce due as provided in said contract. NOTK — California, C C. P., sec. 1598. No. 1598. — Return (or Certificate) of Service of Summons — Residence of Person Summoned. [Title of Court and Cause.] State of Calif omia, County of Sacramento, — ss. I hereby certify that I received the within [or annexed] sum- mons on the jrf day of June, igo6, and on the ^th day of June, IQ06, I attempted to serve it on the defendant described therein at the city of Sacramentc, in the county of Sacrafnento, in said state, 966 AcDiiNDA. that being the place named by said defendant in his certificate of residence filed in the office of the county recorder of said county of Sacramento. That in order to serve said defendant I made dihgent inquir>' of merchants and others engaged in the same fine of business I was informed said defendant was engaged in, and also carefully examined the great register of said county for his name, and also the city directory and telephone directory for the years ipoj and ipo6, and also the list of taxpayers of said city and county, ajid could not discover his name or any name resem- bling it. [See form No. 1590, Certificate of Residence.] NOTE.— California, C. C^ see. 1163; C. C. P., see. 412. No. 1599. — Sale of Business — Goodwill. Know All Men, that we, the undersigned, by these presents, sell to A. B. and C. D. the business of selling hardivare at whole- sale or retail, heretofore carried on by us in the city and county of San Francisco, state of California, under the firm name of "Raise- price and Graball," including all the merchandise described in the schedule and inventory attached hereto, and made a part hereof, including all outstanding debts shown by the books of said firm, and also said books and goodwill of said business and the right to use the said firm name. NOTE.— California, C. a, see. 993. No. 1600. — Warehouse — Receipt for Merchandise Thing of Value. Port Costa, June j, igo6. Received of A. B. C, one thousand sacks of Burhank potatoes; averaging lOQ lbs. per sack, in good order. Each sack marked "X. L. O. B." Three thousand sacks of dried prunes, averaging 60 lbs. per sack, in good order, and marked "P. N. T." on each sack. Stor- age per month $10.00 per thousand sacks. NOTE. — There are two classes of warehouse receipts. Under the first class the property is transferable by the indorsement of the party to whose order such receipt was issued. The indorsement may be in blank, or to the order of another. Under the second class the receipt is trans- ferable by indorsement the same as is the first class, unless it have printed across its face, in red ink, in bold, distinct letters, the word "non- negotiable": Cal. C. C, sec. 1858b. INDEX. ACCOITNT. No. Page. Agent of Absent Persons 1530 910 Annual, Accompanying Report 1522 896 Annual, Accompanying Report 1323 90 1 Contest of 1531 911 Referee of 1524 902 Sale of Personal Property 1527 906 Sale— Real Estate, of 1526 904 Six Months After Letters Issue 1529 909 Thirty Days After Notice to Creditors 1528 907 Trustee of 1532 911 See Return; Report. ACKNOWLEDGMENT AND PROOF OF LNSTRUMENTS. California: Forms. — Attorney in Fact by 4 4 Acknowledgement — Chattel Mortgage of 421 302 Attorney in Fact— County Clerk, by 12 2S Attorney in Fact, J. P., by 20 31 Attorney in Fact, County Recorder, by 16 80 Corporation 2 3 General Form 1 2 General Form— County Clerk, by 14 29 General Form— County Clerk, by 11 28 General Form — Justice of Peace, by 18 30 Handwriting — Proof of Maker and Witness 22 32 Husband and Wife — Notary by 7 27 Husband and Wife — Justice of Peace, by 17 30 Husband and Wife — Proven Notary, by 8 27 Prisoner, in Penitentiary by 5 4 Proven — Notary, by 10 23 Proven — Residence of Parties Unknown 23 33 Proven — Subscribing Witness Dead 21 31 Proven — Subscribing Witness — Notary, by 9 27 Wife— Notary, by 6 27 Witness— County Clerk, by 13 29 Witness, Recorder by 15 29 Witness — Justice of Peace, by 19 31 Certificate, Authentication of — 22, 23 Deputy mav Take — 21 Duty of Officer Taking — 22 Justice of the Peace, Taking — 23 (9*37) 968 INDEX. ACKNO"WliirDGMENT AND PEOOF OF INSTEUMENTS — Continued. No. Page. Married Woman 's — 21 Not to be Taken— When — 21 Prisoner in State Penitentiary, by — 4 What may be Acknowledged — 2 Who may Take in State — 8 Who may Take Acknowledgment; Any Offic'^r .... — 1 Within the State _ 17^ 18 Without the State but within the United States — 18, 19 Without the United States — 19, 20 PEOOF OF INSTRUMENTS: Action to Prove by Judgment — 26 Authority of Officer Taking — 26 Certificate Corrected — 26 Certificate of Proof — 25 Correcting Certificate of — 26 Evidence — What must be Proved — 25 Handwriting, by — 25 Officers who may Take Acknowledgment and Proof of Execution — 1, 2 Proof of Execution of Instruments — How made. ... — 24 Subscribing Witness, by .' — 24 Alaska: POEMS. — All California forms are applicable. Husband and wife, if taken out of the territory, add the words "Freely and Voluntary," See note — 3 Arizona: FORMS. — General Form 24 33 All other California forms applicable if the words "he" or "she" executed the same for the pur- pose and consideration therein expressed are added. See note — 83 PEOOF OF INSTRUMENTS: Not provided for except by action and judgment. Colorado: POEMS.— Chattel Mortgage to General Married Woman — Homestead Involved Subscribing Witness Known to Officer Subscribing Witness — By Subscribing Witness — Witness by — Proved to be Sub- scribing Witness 29 35 PEOOF OF INSTRUMENTS: Not provided for except by action and judgment. Idaho: FORMS.— Married Woman 32 36 All other California forms (except "married wo- man ' ') are applicable — 36 Montana: FORMS. — All California forms are appli- cable. When acknowledgment or proof is taken out of the state they must conform to the laws of Montana. See — 36 Nevada: FORMS.— General Justice of the Peace taking Married Woman 27 35 25 34 26 34 30 36 28 35 33 37 — 23 35 37 INDEX. 9«9 ACKNOWIiEDGMENT AND PROOF OF INSTRUMENTS — Continued. No. Page. Nonresidents. See — 37 Proof of Instrument 34 37 Subscribing Witiuss 3G 38 Who may take in the State — 17, 18 Without the State but in the United States —18,19 Without the United States — 19, 20 PEOOP OF INSTRUMENTS: Not provided for, except by action and judja;ment. New Mexico: FORMS.— Attorney in Fact 38 39 Association 39 39 Corporation 39 39 Gksneral 37 39 Who may take in the Territory — 18 Without the Territory but in the United States.... — 19 Without the United States — 20 See note — 38 PEOOP OP INSTRUMENTS: Not provided for, except by action and judgment. North Dakota: FORMS. — All California forms are ap- plicable. When taken out of the state they must conform to the laws of North Dakota. See note. ... — 39 PROOF OF INSTRUMENTS: Not provided for, except by action and judgment. Oregon: FORMS.— Attorney in Fact 41 40 Corporation 1,587 961 General— .Justice of the Peace, by 40 39 All California forms except "Attorney in Fact," and "Corporations" are applicable. See note.. — 17 PROOF OF INSTRUMENTS: Not provided for, except by action and judgment. Saath Dakota: FORMS. — All California forms are ap- plicable, except they mnst contain the words, "To be the person described in and who executed the within instrument," must be inserted. In attorney in fact acknowledgment the words "who is de- scribed in, and whose name is subscribed" must be inserted. See note — 40 PROOF OF INSTRUMENTS: Not provided for, except by action and judgment. Utah: FORMS. — The same as in California except Corporation Greneral Proof of witness by Witness by When taken out of the state they must conform to the laws of Utah. See note — 41 43 41 42 41 45 41 44 41 970 INDEX. ACKNOWXEDGMENT AND PROOF OF INSTRUMENTS— Continued. No. Page. A Justice of the Peace has no authority to take acknowledgment of an instrument to be re- corded Who may take in the state. A judge or clerk of a court having a seal, a notary public, a county clerk or county recorded. Revised Statutes, sec. 1905. PROOF OF INSTRUMENTS: Not provided for, except by action and judgment. Washington: FORMS. — Corporation 47 42 General 46 42 Homestead Involved 49 4.3 Certificate Authenticated — 22, 2.3 Deputy may take 21 Justice of the Peace, by — 23 Married Woman, by ^21 Who may take in the State — 17, 19 Without the State but in the United States — 18, 19 Without the United States — 19, 20 PROOF OF INSTRUMENTS: Not provided for, except by action and judgment. Wyoming: FORMS. — General 48 43 Homestead Involved 49 43 Certificate — Authentication of — 22, 23 Married Woman, by — ^21 Who may take in the State — 17, 18 Without the State but in the United States — 19 Without the United States — 19, 20 PROOF OF INSTRUMENTS: Not provided for, except by action and judgment. GENERAL NOTE: Accident, as to 13 Acknowledgment, Defectively Certified — 10 Actions — Proof by — 26 Agent of Party Taking — 16 Arrested — Witness may be — Contempt — 10 Attorney at Law, a Notary — Taking — 16 Authentication of Instruments — 22 Authentication of Certificate — 22 Authority of Officers Taking — 10 Burden of Proof — 1 •> Certificate, Authentication of — 22 Certificate — Conclusive, When — 12, 13 Certificate — Contents, What to be — 25 Certificate, Defective — 6, 10 Certificate, Evidence to Impeach ■. — 15 Certificate— " Facts " Which are not True— Stating — 13,14 Certificate — False — 6 Certificate — .lustices of the Peace 's, to — 23 I Certificate Corrected — 26 Certificate 's Mistakes Corrected — 10 INDEX. 971 ACKNOWTiEDGMENT AND PROOF OF INSTRUMENTS — GENERAL NOTE— Continned. Certificate — Proof of Execution of Conclusiveness of Certificate Conclusive as to Married Wonon— Wlicn Contempt, Notary, of Contempt, Officer, of — Punishment Court, Day in, All People to have Corporation 's Recrotary, a Notary, by Correctinj^ Certificate "Credible Witness"— Not Credible Whon Day in Court, All People to have Damages — Certificate, False Damages — Negligence for Death of Party Defective Certificates Deputies, by Departments of Governnirnt Disqualification of Otfierr Taking a Sifeguard .... Due Process of Law Duty — Showing Officer did not do His Duress, as to Married Woman Encumbrancers, as to Established Instrument Estoppel, as Evidence to Impeach Certificate Excuse for Negligence Execution, Proof of False Certificates Fraud — As to Married Woman Fraud — As to Instrument Functions — Judicial Handwriting of Maker Impeachment of Certificate — Evidence to Impeachment by Married Women Incredible Witness, as to Innocent Purchasers, as to Intention to Acknowledge and Act Must Co-operate Instruments, that may be Judgment Establishing Execution of Instrument . , Judgment Proving Instrument Judicial Act — Taking is not Judicial Act Under Statutes Judicial and Ministerial Officers Judicial Functions ' Judicial Notice of Records Judicial Officers — Not Tjiable for Mistakes Judicial Officers and ^Hnisterial Duties ".ludicially " — Notary Taking does not Act Justice of the Peace Taking — Liable for Ilis Mis- takes Land, Right to Use Law, Process of Legal Questions Involved Legislative Departments of Government Liability of Officer — When Lost Instrument Married Woman 's 11, 12, 13, 21 0. Page. — 17-2G — J2 — 13 — 10 — 26 — 9 — 10 — 26 — 7 — 9 — 6 — 6 — 8 — 6,10 — 8,18 — 8, y — 5 — 8, 9 — 14, 15 — 14 — 13,14 — 8 — 5 — 15 7 24 — 6 — 14 — 13 — 9 — 24 — 15 — 13,14 — 7 12, 13, 14 — 14 1, 2 — 26 — 8 — 5 — 12 — 9 — 8 9, 10,11 10,11 — 10 23 — 8. 9 — 8, 9 — 8 — 11 — 10,11 — 8 972 TTs^DEX. ACKNOWIiEDGMENT AND PROOF OF rNSTHTTMITNTS— GENEEAL NOTE — C^ontinued. No. Page. Married "Woman 's, Impeaehment of — 4 Married "Women — Presumptions, as to — 6 Ministerial Act — Taking is — 10 Ministerial and Judicial Officers — Taking — 9 Ministerial Officer, Notary is — 10 Ministerial Officer Liable for Mistakes — 10, 11 Ministerial Officers Taking — 8 Mistake, as to — 13 Mistake in Ceri;ifieate Corrected — 10 Mistakes — Judicial Officers not Liable for — 10, 11 Mistakes, Ministerial Officers Liable for — 10, 11 Mistakes, Responsibility for — "Who — 10, 11 Names in — Presumptions, as to — 5 Negligence of Officer Taking — 7 Negligence, Damages for — 6 Not to be Taken, "When — 21 Notary, Attorney for All Parties may Take .... — 16 Notary Attorney at Law not to Take Client 's. When — 16 Notary — Smart One Learns Something — 14 Notary, Member of Chaiitable Association Taking — 16 Notary — Ministerial Officer is — 10 Notary Quasi Judicial, as a — 9 Notary 's Risks — 7 Notary, Secretary of Corporation Making Instru- ment Void — 16 Notary — "Witness cannot be — 10 Notice, Judicial, of Records — 8 Oath, to Administer, Officer is — 26 Oath of Witness to — 6 Officer — Contempt of his Process — 26 Officer's District, not Taken in — 13 Off-cer, Duty of — 22 Officer — Interested in Instrument — 15 Officer's Interest not Appearing — 15 Officer — Party to Instrument — 15 Officer — Qualifications of not Statutory — 22 Officer — Relationship to Party — 15 Officer — Witness not to be — 15 Officer — Wife 's, cannot Take — 15 Officer, Witness, may Commit — 10 Officer, Witness, may Subpoena — 10 Officers— Who may Take i, 2, 5, 17-19 Officers — What Class may Take — 1 Part of Instrument is — 12 Powers — Officers Taking — Of — 10 Presumptions, as to — 5, 6 Prima Facie True — 5, 7 Private Writing of — 7 Process of Law — 8, 9 Proof— Burden of — 10, 15 Property, Right to Possess — 8, 9 Purchasers, Innocpnt — 13, 14 Qualifications of Officer — 22 ' ' Quasi Judicially " to Act — 9 Record of Proved Instrument — 8 Relationship of Officer — 15 Representatives of Corporations Taking — 16 INDEX. 973 ACKNOWLEDGMENT AND PROOF OF INSTKTJMENTS— GENERAL NOTE— Continued. No. Page. Responsibility for Mistake — 10 Right to Possess Property — 8, 9 State. Who mav Take in" — 17, IS States, United, Who may Take in — IS. 19 States. United. Who may Take out of —19.20 Subscribing Witness — By — 24 United States, Who mav Take in — 18, 19 United States, Who may Take out of —19,20 Used Without Furth r I'roof — .5 Venue in — ^ Void, When — 5, 6 Warrant for Arrest of Witness — 10 Who may Take 1, 2, 5, 17-19 Wife 's, Taken bv Husband — 16 Wills not to be ' — 7 Witness not Appearing Punished — 10 Witness Arrested may be — 10 Witness Committed may be — 10 Witness — Credible — 7 Witness — Officer as — Can He Impeach His Certifi- cate — 1.5 Witness' Reputation — 7 Witness' Risk — 7 Witness, Subscribing by — 24 Witness Surprised — May be — 7 ADMINISTRATOR. Tn this book synonymous with Ex- ecutor. See Affidavit; Notice; Order; Petition. Administr'->tor, Mortgage by 429 312 Administrator, Patent by 437 31.5 Administrator, Petition that He Give New Bonds .... 1468 842 Administrator, Petition that He Give Further Security 1469 843 Administrator, Petition that He Give New Bond 1470 844 Admin. strator, Special, Petition to Appoint 1473 845 Administrator, Petition of Surety to be Released from Bond 1471 844 Administrator, Petition from Bond 1472 845 Administrator, Petition for Patent by 43C 315 Administrator's Oath of Office 603 417 ADMrNISTRATOR, PUBLIC, remits his fees 286 229 AFFIDAVIT. See Notice; Order; Petition; Writ. Account to 559 389 Administrator of. Inventory and Appraisement 599 416 Appraisers of — To Bill for Services 601 416 Appraisers of — Inventory and Appraisement 600 416 Arrest, Order of, for 560 390 Arrest, Order of — Fraudulent Debtor, for 561 390 Arrest, Order of — Removal of Property, for 562 391 Attachment for 563 392 Attachment vs. Nonresideiit, for 564 393 f 974 INDEX. AFFIDAVIT— Co ntinned. Attachment to Procure Order, Examination for Anctioneer of, on Return of Sale of Personal Estate . . Auctioneer of, on Return of Sale of Personal Estate. . . . Award — Motion to Correct on Award — Notice of, Has Been Served Bill for Services, Appraisers of Bond, Executor 's, Insufficient Claim, Creditor 's Claim and Delivery of Personal Property, on Clerk, Willful Neglect by Contempt, Abuse of Process of Court Contempt, Application, Subsequent for Order Refused Contempt, Attorney, Willful Neglect by Contempt, Attorney Without Authority Contempt Committed Contempt Committed Contempt, Copy, Refusal of Permission to Take Contempt Contempt Contempt with. . Contempt Contempt Contempt ings. .. Contempt Contempt Contempt Contempt Contempt Contempt Contempt Contempt Contempt Contempt Contempt Court's Mandate, Disobedience to Court's Order, Refusal to Obey Court Proceedings, Unlawful Interference Disobedience to Court 's Mandate Ejectment, Re-entry After Interference, Unlawful, with Court ProceeJ- Juror Improperly Conversing Juror Unlawfully Conversing Order Refused, Subsequent Application for Re-entry into Property After Ejectment.. Referee Neglects Testimony to Take .... Refusal to Obey Court 's Order Rescuing Person in Custody of Officer Subpoena, Willful Neglect to Serve Willful Neglect by Clerk Willful Neglect to Serve Subpoena Witness, Unlawfully Detaining Continuance for Corporation Partnership — Creditor's Claim Creditor 's Claim Creditor 's Claim — Corporation, Partnership Creditor had no Notice Creditors, Publication of Notice to Costs — Memorandum to Deposition, Commission to Examine Witness Deposition, Time Shortened for Notice to Take Defendant Concealed to Avoid Service No. Page, 589 409 608 420 609 421 73 73 72 72 601 416 593 412 587 408 565 393 579 406 575 400 576 401 581 404 574 399 566 394 584 406 573 399 578 402 582 404 570 397 578 402 577 401 570 397 567 395 568 396 576 401 577 401 572 398 582 404 571 397 580 403 579 403 580 403 569 396 585 407 586 407 587 408 586 407 588 409 620 426 1006 599 595 413 592 411 1588 963 INDEX 075 APFTDAVTT — CotitinTied. No. Page. Examination of Judfjmont Debtor, for 591 410 Execntor or Administrator of 603 417 Executor 's Bond Insufficient, is 593 412 Executors, Removal of 628 432 General 596 414 Guardian, Appointment of — Infant Imperiled 597 414: Guardian Refuses to Support Ward 598 415 Improvements — Five Hundred Dollars of, Mining .... 401 2S9 Infant Imperiled — Guardian Appointed 597 414 Judgment Debtor, Examination of, for 591 410 Judgment Debtor, Order for Examination cf Debtor of 590 410 Judgment — Motion to Vacate on 73 73 Mail, Service by, of 611 422 Mail by. Service of Summons, of 619 426 Memorandum of Costs to 1006 599 Mismanagement, Removal of Executors, for 628 432 Mortgage — Chattel, Parties to 420 302 Notice, Creditor had no 588 409 Notice to Creditors, Publication of 620 426 Notice of Petition for Probate of Will, Service of . . . 602 417 Notice of Sale of Real Estate, Publication of 604 418 Notice of Sale of Personal Estate, Publication of 607 420 Order of Arrest, for 560 390 Order of Arrest, for — Fraudulent Debtor 561 390 Order of Arrest, for — Removal of Property 562 391 Order, Attachment to Procure Examination 589 409 Order Regulating Time for Examination of Witness.. 594 412 Party, Substitution of 616 424 Party, of — Testimony of Witness Necessary 583 405 Payment. Tender of — Demand to Repossess 627 431 Posting Notice of 621 427 Posting Notice of 622 428 Posting Notice of Settlement of Account 623 428 Posting Notice — General 621 427 Principal, Clerk, of — Publication of Notice of Sale of Personal Estate 607 420 Probate of Will, Service of Notice of Petition for 602 417 Publication of Notice to Creditors, of 620 426 Publication of Notice, of— Sale of Real Estate 604 418 Publication of Summons, of 624 428 Publication of Summons, for 626 430 Removal of Executors 628 432 Return of Sale of Personal Estate 608 420 Return of Sale of Personal Estate, of 609 421 Sale of Real Estate, of 605 418 976 INDEX AFFIDAVIT— ContiTitiea. No. Page. Sale of Real Estate, of 606 419 Sale of Real Estate. Posting Notice, of 610 421 Service by Mail of 611 422 Service of Notice of 612 423 Service of Notice, of— Clerk, etc 613 423 Service of Notice— Petition, Probate of Will, for 602 417 Service of — Office Table 614 423 Service of Sammons by Mail, of 619 426 Settlement of Account — Posting Notice, of 623 4.28 Sole Trader 615 424 Substitution of Party 616 424 Summons, Publication of. for 626 430 Summons, Publication, of 624 428 Summons, Service, of 625 429 Summons, Service of, by Mail 619 426 Sureties of 617 425 Sureties Annexed to Officer 's Bond, of 618 425 Tender of Payment of — Demand to be Restored to Pos- session 627 431 "Ward not Properly Supported 598 415 Witness, Commission to Examine 595 413 Witness Necessary, to Take Testimony 583 405 Witness, Order Regulating Time for Examination, of.. 594 412 GENERAL NOTE: Account — Executor or Administrator to — 389 Administrator — Account to — 389 Affiant may be Cited Before the Court to Explain — 388 Attachment for. What to Show — 392 Attorney, if a Notary, may Take and Use in Action — 388 Certiaeate to Signature of Officer Taken Outside of State — 387 Claim and Delivery in, What to Show — 393 Clerk may Take — 387 Contempt Committed, Disolwdienee of Notary's Subpoena — 394 Contempt Committed, What to Show — 3^ Copy of, Certified by Judge or Clerk of Court hav- ing It in Custody, Prima Facie Evidence — 387 Deposition to Take — 413 Deputy Clerk may Take in His Own Name — 388 Evidence of Publication, of — 427 Executor, Account to — 389 Executor or Administrator, by — Attached to His Letters — 417 Executor 's Bond is Insuffic ient — 412 Foreign Country, Who may Take in — 387 Guardian Refuses to Support Ward — 415 Hearsay in — 388 In Foreign Language, Excluded — 388 Information and Belief, on — 388 INDEX 977 AFTIDAVIT— GTllSnRRAL NOTE — Continued. No. Pa?^. Jndge may Take — 3*?7 Juryman 's — ^^^ JuHtiee of Peace may Take — 387 Minor, Rescued, to he — 415 Notary Public may Take — 387 Notice Served by Publication — Proof of — 417 Oath to, may be Administered by any Person havinjT General Anthority to — 388 Oath (AflSdavit) of Permanent Administrator At- tached to His Letters — 485 Oath (Affidavit) of Special Administrator In- dorsed on nis Letters — 485 Proof of Service of N)tice by Publication, by . . . . — 417 Publication, of, Generally — 427 Replevin in — What to Show — 393 Ropuprnancy in — "Videlicit" to — 388 Return of Service, to — 429 Service by Mail, of — 422 Service of Summons, of — 429 Signed — Need not be — 388 Subpoena to Obtain — 406 Summons, of Service to — 429 "Sworn to" — Meaning of — 388 "Under Oath "—Meaning of — 3S8 TTnited States in. Who may Take — 387 Venue — Absence of has been Held to be Fatal .... — 388 Venue in — Meaning of — 388 "Videlicit" — If Repugnant to Preceding Mat- ter — Rejected — 388 AGREEMENT. See Contract. ALTERATION OF WRITTEN INSTRUMENTS 1586 955 ANIMALS. Notice of Lien on 387 275 Propagating, Notice of Lien 3S8 275 ANSWER — PLEADINGS. See Demurrer. Acceptance Unauthorized 629 433 Accommodation Acceptance 630 433 Account 631 433 Accounting and Payment 632 434 Accounting and Payment 633 434 Accord and Satisfaction 634 434 Action, Another Pending 637 435 Action, Application to Join in 03'^ 435 Agreement to Take Note 635 434 Alteration of Contract 658 441 Alteration of Instrument 636 435 Another Action Pending 637 435 Application, Guardian, Appointment of, for 7.!7 459 Application to Join in Action Cu>S 435 Arbitration and Award 639 436 New Forms — 62 978 INDEX. ANSWITRr—PliEADINGS— Continued. No. Pa^. Arrest, Justification of. 640 436 Arrest, Criminal Process 641 436 Arrest, Criminal Process 642 437 Assignment not Eqnitable 643 437 Assignment to Third Person 644 437 Award, Invalidity of 744 461 Bankruptcy, of 645 438 Bankruptcy— By Deed 646 438 Bill, Payment by 779 470 Bona Fide Purchaser 647 438 Breach, Warranty, of 811 480 Breach, Warranty, of 812 481 Breach, Warranty, of 813 481 Breach, Warranty, of 814 481 Capacity, Want of 648 439 Capacity, Want of 649 439 Capacity, Want of 650 439 Capacity, Want of 651 439 Claim and Delivery 652 440 Claim, Compromise of 653 440 Collision, Highway, on 739 459 Compromise, Claim of 653 440 Consideration, Failure, of 654 440 Consideration, Want of 655 440 Consideration, Want of 656 441 Consideration, Want of 657 441 Contract, Alteration of 658 441 Contract, Explaining 659 441 Contract, Eescission of 660 442 Contract, Special 661 442 Contract, not in Writing 662 442 Controverting Title 663 442 Conveyance, not Fraudulent 734 458 Counterclaim 664 442 Credit, no Negligence in Giving 665 443 Credit, Unexpired 666 443 Damage, Plaintiff's Fault, by 728 457 Death of Defendant 667 443 Deceit ««« ^43 Defendant, Death of 667 443 Defendant, Infancy of 741 460 Defendant, Marriage of 760 466 Defendant, Marriage of 761 466 Defendant, Partnership of 776 469 INDEX. 979 ANSWER^ PLEADINGS— Oontinned. No. Pape. Defendant, Part Owner 669 443 Defendant, Performance by 785 471 Defense, Dwelling of 725 455 Demurrer and Answer 670 444 Denial, Acceptance of 671 444 Denial, Agreement of 672 444 Denial, Articles by 673 444 Denial, Assignee by 674 444 Denial, Bailment of 675 445 Denial, Breach of Contract 676 445 Denial, Breach of Promise 677 445 Denial, Breaking of 678 445 Denial, Capacity, Official of 705 451 Denial, Charge, Falsity of 684 447 Denial, Common Carrier 679 446 Denial, Conditional Delivery of 681 446 Denial, Conditions Precedent of 680 446 Denial, Contract, Breach of 676 445 Denial, Demand of 682 446 Denial, Dog, Vicious, Possession of 711 452 Denial, Emploj'meut of 683 446 Denial, Falsity of Charge 684 447 Denial, I-^aud of 685 447 Denial, Fraud of 686 447 Denial, General 687 447 Denial, General 688 447 Denial, General 689 448 Denial, Guaranty of 690 448 Denial, Information and Belief on 691 448 Denial, Interest of 692 448 Denial, Interest, Plaintiif's, of 693 448 Denial, Knowledge of 694 449 Denial, Knowledge of 695 449 Denial, Knowledge of— To Form Belief 696 449 Denial, Loss of 697 449 Denial, Loss of 698 450 Denial, Mortgage of 699 450 Denial, Negligence in Sale, of 700 450 Denial, Notice of 701 450 Denial, Notice of — Dishonor 702 451 Denial, Nuisance, of 703 451 Denial, Offer to Perform 701 451 Denial, Official Capacity, of 705 451 Denial, Partnership, of 706 451 980 INDEX. ANSWEE^PLEADINGS— Continued. No. Pa^. Denial, Part Performance 701 451 Denial, Part and Tender as to 708 452 Donial, Performance 709 452 Denial, Performance, Plaintiff 's, of 710 452 Denial, Possession of Vicious Dog 711 452 Denial. Presentment, of 712 453 Denial, Probable Cause, Want of 713 453 Denial, Promise, Breach of C77 445 Denial, Promise of 714 453 Denial, Promise of 715 453 Denial, Promise of 716 453 Denial, Representations of 717 453 Denial, Sale of 71 S 454 Denial, Sale, Negligence in, of 700 450 Denial. Specific 719 454 Denial, Stock, Subscription, of 720 454 Denial, Trust of 721 454 Denial, Trust of 722 454 Denial, Waste of 723 455 Duress 724 455 Dwelling, Defense of 725 455 Entry, Resistance to 792 473 Eviction 726 455 Execution, Justification Under 727 456 Fault, Damage by Plaintiff 's 728 457 Fence, Justification of Rebuilding 729 457 Forcible Entry and Detainer 730 457 Former Judgment 731 458 Fraud 732 458 Fraud, Judgment, in Obtaining 745 461 Fraud, Note Procured by 733 458 Frauds, Statute of 5^77 476 Frauds, Statute of 798 477 Frauds, Statute of '-^^ 477 Frauds, Statute of 800 477 Fraudulent, Conveyance was not 734 458 Goods Furnished Wife 735 459 Goods, Lien upon 758 465 Goods' not Received 736 459 Guardian, Application for Appointment of 737 459 Guaranty, Departuie from 738 459 Highway. Collision on 739 459 lUegal Interes; 740 460 Indorsement, Payment before 780 470 Infancy, Defendant of 741 460 TNDEX. 9»1 ANSWER— PUGADrNGS — Continued. No. Page. Infancy, Flaintiir of 742 460 Installment, as to 743 460 Instrument, Alteration of 6.36 435 Interest, Illegal 740 460 Invalidity of Award 744 461 Invalidity of Judgment 746 461 Judgment, Former 731 457 Judgment, Fraud in Obtaining 745 461 Judgment, Invalidity of 746 461 Judgment, Setting up a 747 462 Jurisdiction of Person, Want of 748 462 Jurisdiction, by Foreign Corporation, Want of 749 462 Jurisdiction of Subject, Want of 750 462 Justification, Arrest of 640 436 Justification, Execution, under 727 456 Justific.ition, Captain, by 751 463 Justification, Publication of 752 463 Justification, Publication of 75ii 463 Justification, Publication of 754 463 Justification, Publication of 755 464 Justification, Publication of. Privileged 756 464 Justification, Publication of Privileged 757 465 Justification, Rebuilding Fence, of 729 457 Justification, Search-warrant, Under 793 473 Justification, Sheriff, by 795 474 Justification, Trespass, of 806 478 Justification, Trespass of 807 479 Libel, Mitigation of 766 467 Lien, Goods upon 758 465 Lien, Services for 759 465 Limitations, Statute of 801 477 Limitations, Statute cf 802 477 Marriage, Defendant, of 760 466 Marriage, Defendant, of 761 466 Marriage, Plaintiff, of 762 466 Misjoinder 763 466 Misnomer 764 466 Misrepresentations, Policy Obtained by 787 472 Mistake 765 467 Mitigation, Libel of 766 467 Mortgage, not Assigned 767 467 467 468 Negligence, Plaintiff 's 768 Negligence 769 Nonjoinder, Assignee of 7T0 468 f><52 INDEX. ANSWER— PLEADINGS— Continurd. No. Page. Nonjo^'ncler 771 468 Nonjoindor 772 468 Nonioinrler 773 468 Nonjoindpr 774 469 Note, Payment bv 781 470 Overdrawing, Plaintiff 's Assent 775 469 Pnrtnership, Defendant of 776 469 Partnership, Plaintiff of 777 469 Payment 77S 470 Payment by Bill 779 470 Paymf nt before Indorsement 780 470 Payment by Note 781 470 Payment in Services 782 471 Payment, and Tender 78.3 471 Peace, Acts Done to Preserve 784 471 Performance by Defend:^nt 785 471 Performance — non Excuse for 786 472 Plair-tiff, Infancy of 742 460 Plaintiff, Marriage of 762 466 Plaintiff, Negligence of 768 467 Plaintiff, Partnership of 777 469 Policy Obtained by Misrepresentations 787 472 Policy, Transferred without Consent 788 472 Presentment — non Excuse for 789 472 Publication, Justification of 752 463 Publication, Justification of 753 463 Publication, Justification of 754 463 Publication, Justification of 755 464 Publication, of Privileged, Justification 756 464 Publication, of Privileged, Justification 757 465 Purchaser, Bona Fide 647 438 Redemption, Equity of not Assigned 790 473 Release 791 473 Rescission of Contract 660 442 Resistance to Entry 792 473 Search-warrant, Justification under 793 473 Self-defense 794 474 Services, Lien for 759 465 Services, Payment in 782 671 Sheriff, Justification by 795 474 Slander of, Title 796 476 Special Contract 661 442 Statute of Frauds 7»9 477 Statute of Frauds 798 477 Statute of Frauds 799 476 INDEX. 983 ANSWER— PLEADINGS — Continued. No. Page. Statute of Frauds 800 477 Statute of Limitations 801 477 Statute of Limitations 802 477 Suit, Tender Before 804 478 Surrender 80.3 478 Tender Before Suit 804 478 Term, not Expired 80.5 478 Third Person, Assifjnment to 644 437 Title, Controverting 663 442 Title, Slander of 796 476 Trespass, .Justifying 806 478 Tre9[)ass, .Justifying 807 479 Ultra Vires 808 479 Unseaworthiness 809 480 Usury 810 480 Warranty, Breach of 811 480 Warranty, Breach of, by Plaintiff 812 481 Warranty, Breach of 813 481 Warranty, Breach of, as to Quality 814 481 v;t',', (inoiN ruTished 735 4.59 Work, not Finished 815 481 APPRAISERS. See Affidavit; Homestead; Inventory and Appraisement; Order; Notice; Petition. Affidavit to Inventory 600 418 Affidavit to Bill for Services 601 416 Appointed — Homestead, to Appraise 272 22.3 Appointed — Homestead, to Appraise 274 224 Compensation of 281 227 Oath of 375 224 Report of 276 224 ARBITRATION AND AWARD. See Affidavit; Notice; Or- der; Petition. Action, First Entry in Register 57 52 Affidavit, Arbitrators not Made Award 53 50 Affidavit on Motion to Modify Award 79 73 Affidavit of Arbitrators on Motion to Show Cause.... 54 51 Affidavit — Motion to Vacate Judgment 73 68 Affidavit — Notice of Award was Served 72 67 Affidavit — Notice Served of Award Filed 72 67 Agreement to Arbitrate 50 46 Agreement to Arbitrate 51 50 Agreement to Arbitrate 52 50 Appointment — Notice to Arbitrators of 5S 52 984 INDEX. AEEITEATION AKD AWARD— Continued. No. Page. Arbitration Bond • 62 53 Arbitrators — Affidavit that Award is not Made 53 50 Arbitrator 's Oath 60 53 Arbitrators — Notice of Their Appointment 58 52 Award 68 57 Award 69 58 Aw.'ird — Arbitrators Ordered to Make 53 51 Award Amended 76 72 Award — Entry of Stayed 75 72 Award — Notice — Motion to Correct 74 72 Bond of Arbitration 62 53 Bond of Arbitration, Conditions of 63 54 Complaint in Action for Damages Because of Revoca- tion of Submission 67 56 Correct Award — Affidavit on Motion to 79 73 County Clerk 's First Entry in Action 57 52 County Clerk 's Second Entry in Action 70 67 First Entry in Register of Action 57 52 Hearing — Notice of 59 53 Judgment — Staying Entry of Award 75 72 Judgment — Stayed to Show Cause Why not 77 72 Modification of Award — Affidavit on Motion for 79 73 Motion — Notice of, to Correct Award 74 72 Notice to Arbitrators 58 52 Notice of Filing Award 71 67 Notice of Motion to Correct Award 74 72 Notice of Hearing 59 53 Oath of Witness 61 53 Oath of Arbitrator 60 53 Order Vacating Award 78 73 Order to Show Cause Why Award Should not be En- tered 77 72 Order to Show Cause — Affidavit on 54 51 Order Staying Entry of Judgment 75 72 Order — Arbitrators to Join in Attempting to Award... 55 51 Order Amending Award 76 72 Order — Rehearing Granted 78 73 Partners — Agreement by 50 46 Release of Award 501 344 Register of Action — First Entry in 57 52 Revocation by All Parties 64 55 Revocation by One Party 65 56 Revocation of Submission 66 55 Submission — Clause in Contract 51 50 Submission — Clause in Contract 52 50 INDEX 985 AEBITEATION AND AWARD — Continned. No. Page. Vaeated Award — Order to 8bow Cause Why not 77 72 Vacating Award — Order Made 7S 73 Witness, Oath of 61 53 GENERAL NOTE: Action, Bar to, Award is, WTion — 64 Action for rompensation by Arbitrator — 66 Action on A ward — 57, 64 Actual Fraud — 69 Agreement Failing, Suit may be Brought — 67 Agreement not Reached, Court will not Appoint Other Arbitrators — 67 Alternate Award — 60 Alteration of Award — 63 Amending Awards 70. 71, 72 Appeal from Award 47,73,74 Arbitration Bonds — 54 Arbitration Compulsory — 44 Application of Statute — 44 Arbitration — Common Law, Right to — 44 Arbitration — Parol Agreement — 44 Arbitration — vStipulation to — 47 Arbitration, Submission Set Aside f Invnlid — 67 Arbitration, Costs of — A Lawyer's Opinion — 65 Arbitrator, Bias of — 70 Arbitrator, Death of — 67 Arbitrator, Examination of — 71 Arbitrator, Interest of — 70 Arbitrator — Impeachment of Award — 70 Arbitrator's Compensation — Costs — 66 Arbitrator 's Powers — 46 Arbitrator, Prejudice of — 70 Arbitrator's Relationship to Party — 71 Arbitrators, Substitution of — 70 Attorney, Notice of Award Served on — 59 Authority, Delegation of — 69 Award — Actions on • — 64, 57 Award Against Law — 71 Awards and ('ourts of Equity — 71 Award as Estopped — 63 Award, Beyond the Issue — 63 Award — Cannot be Performed, What — 69 Award, Certainty of — 59 Award, Alteration of — 63 Award Complete, When — 59 Award, Conclusiveness of — 63 Award Corrected by Arbitrator and by Jury — 71 Award — Costs not Paid — Xo Award — 66 Award of Costs and Right to Costs Different Ques- tions — 65 Awards — Deposit to Abide — 55 Award, Evidence Outside of — 69, 70 Award, Final When — 60 Award, Filing — Notice of — 59 Award — How Made — 59 Award Impeached 63, 68, 69 986 INDEX. ASBITRATION AND AWARD— GENEKAL NOTE— Continued. Award Indefinite Awards, Items in Award — Judgment Entered on is the Court's.... Award — Miscaleulation in Award Must Control Large Part of Matter Sub- mitted Award not Imperfect in Form Award. Objections to Waived Award — Ordered Made Award — Part of it Enforced Award — Practice After Award — Eeasons for not Necessary Award Registered Award Set Aside — Grounds for Award, Signed, to be Award — Stipulation to Abide by Award — Time of Entry of Award TTncertain Award Unreasonable Awards Upheld — Cases Cited Award upon Matters not Submitted Award Vacated. When Award Void if Parties cannot Control Matter Sub- mitted Award Void if Unlawful Reasons are Given for it Award Void — When Award — When to be made "Barred Claim" Submitted Bar to Action — When Beneficial Societies Bias, Knowledge of Party Bias of Arbitrators "Boards of Arbitration" Boards — Arbitration. Conditions in Casefl Cited Sustaining Certain Award Costs, Agreement to Paj' Costs and Expenses Costs — Authority to Award Them — Different Ques- tions Costs, Award of Costs Below Court 's Jurisdiction Cost-bill Seems to be Necessary, if Costs — Compensation of Arbitrators Costs not Paid — No Award ["Pas d 'Argent, Pas de Suisses "] Costs of Arbitration — A Lawyer's Opinion Costs — Paid by both Parties Chance — Decision by Clerk of Court — Authority to Enter Submission.. Clerk 's Entry — Award Common-law Right to Arbitrate Compf^nsntion, Agreement for Compensation of Arbitrator — Costs Complete Award Compulsary Arbitration Conclusiveness of Award No. Page. f^9 63 67 71 46 71 74 47 63 73 62 59 73,74 63 47 64,65 60 60 61,62 71 68,69 46 61 59 63 46 64 46 71 70 46 54,55 61,62 66 55 65 65 66 65 66 66 65 66 62 49 57, 59 44 66 66 59 44 63 INDEX. 987 AEBITP.ATTON- ANT) AWAF.D— GENERAL NOTE— ContiiuKMl. No. Pagp. Compnlaorv Awiird — 47 Conditioni] Awiird — 60 Oonstrn'^tior of Award — Tiiberal — R4 roiitr« On Sale of Real Estate — Amount of . 4^-, "On," "In" — Meaning of, in Bond 115 Place wbere Made as to, Governing Them 115 Payee in — 95 Payable to Bearer II5 Pledge of _ 116 Purchaser's Rights Hg Reasonable Constructiou of 115 Eejeetion of Official II3 nj 996 INDEX. BONDS— GENERAL NOTE— Continued. No. Pa^p. Replevin on, Contents of — 497 Replevin on — Return of Property to Defendant, Contents of — 498 Rights of Purchaser — llfi Seal- "No Seal No Bond" — 115 Seal, Official 13. 14. 1.5 Successive Terms 11.3,114 Time to File, Official 113,114 Validitv of 11.5,116 Void, Official, When — 95 CEREMOliY OF MARRIAGE. See Certificate. CERTIFICATE. Action, None Pending 413 292 Admission — Practice Law, to 465 512 Appointment of — Oath to 846 504 Api)ointment, Road Overseer by 845 504 Attachment, Writ — Issued by Justice of Peace to .... 848 505 Clerk— Corporation of 203 157 Clerk of, General 868 513 Church — Incorporation of 198 154 Clerk, Minute Order of 864 512 Clerk— Papers on File of 863 511 Clerk, Writing or Signature to 867 513 Coroner 's— Value of Services 192 150 Corporation — By-laws to 234 172 Corporation — Continuance of Existence under Code... 199 155 Corporation — Continuance of Existence under Code.. 200 156 Corporation — Incorporation of 195 151 Corporation — Reincorporation of 196 153 Death, of 190 150 Death, of 182 147 Decree to — Copy of 869 513 Duplicate 857 509 Election of ' 849 505 Execution— Real Estate, Sale of 858 509 Foreclosure, Sale on 859 510 General, Clerk of 868 513 Identity of Claim 397 282 Judgment-roll 861 511 Jurors — Service 862 511 Marriage, of 852 506 Marriage, of 853 506 Minor, Citizenship of 854 506 Minute Order- Clerk 's 864 512 Notary Public, of 866 512 Notary PubUe Taken Oath, that 847 504 INDEX. 997 CEETIFICATE — Continued. No. Page. Notice, Posting for Sixty Days — Mining 412 292 Office, Oath of 850 505 Papers on Pile, Clerk, by 803 511 Proof of Will, of 1 5(55 934 Proof of Lost Will 1564 933 Redemption of 1164 696 Residence, of 1590 962 Road Overseer, Appointment of 845 50i Sale, Foreclosure, on 859 510 Sale, Real Estate — Execution 858 509 Signature to 851 505 Tax Sale — Real Estate — Individual, to 855 507 Tax Sale — Real Estate— State, to 856 508* Transcript 860 510 Value of Services — Coroner 192 150 CERTIORARI. See Affidavit; Notice; Order; Petition; Writ. Writ of 1576 943 CHATTEL MORTGAGE. See Mortgage. Affidavit to 420 302 Acknowledgment of 421 302 CHURCH MORTGAGE. By 431 313 By 432 314 CITATION. See Affidavit; Order; Petition. Administrator, Court to 870 514 Banker — Unclaimed Deposit — To 874 516 Cause, to Show 872 514 Distribution, Executor on Petition for 873 515 Inheritance Tax, on 876 517 Savings Bank, to 875 516 GENERAL NOTE: Application for — 515 Clerk to Sign — 515 Contents of — 515 Directed — How — 515 Service of — 515 When to Issue — 515 CLAIM. See Creditor's Claim. CLAIM AND DELIVERY. See Affidavit; Bond; R-eplcvin. COMMITMENT. Citation by Court Before 871 514 Juvenile Court 878 519 JuvenDe Court 879 519 Prison— General — To S77 518 998 INDEX. COMPLArNT— PI.EADINGS. See DemtiTTer. No. Page. Acceptor, Without Funds, vs. Drawer 880 520 Administrator, by 881 520 Administrator, v3 882 521 Arrest, Malicious, for 883 521 Assignee — Trust, Wife for 884 522 Assignee, Creditors for 885 522 Attachment, Sheriff Aid of 979 583 Attorney, Negligence, for 886 523 Bills, Foreign — Payee vs. Drawer 887 523 Bond, Official, on 888 524 Borrower vs 889 524 Breach of Contract to Arbitrate 67 56 Breach of Contract to Employ 896 527 Breach of Contract to Manufacture 897 528 Breach of Contract to Serve 898 528 Breach of Covenant 912 533 Breach of Covenant 913 539 Breach of Covenant 914 540 Builder — Special Damage for Loss of Rent, vs 890 524 Cargo, Lost by Fire 924 545 Cattle, Trespassing 891 525 Claim and Delivery 892 525 Claim and Delivery 1152 689 Collision, Injuries by 893 526 Common Carriers vs 894 527 Compromise, Upon 895 527 Contract, Breach of, to Employ 896 527 Contract, Breach of, to Manufacture 897 528 Contract, Breach of, to Serve 898 528 Contractor, Insecure Street vs 900 530 Contractor, Material vs 952 559 Contractor, Special Contract, by 899 529 Conversion — Personal Property of 901 530 Copartnership — Draft Accepted and Paid, on 903 533 Corporation by 904 533 Corporation — Assault and Ejection, vs 905 534 Corporation — Assessment on 906 534 Corporation — Condemnation of Land by 902 530 Corporation, Directors of, vs 907 535 Corporation, Municipal, vs. Street 908 536 Corporation, Special Law Under 909 537 Corporation — Subscription on 910 537 County, v3 911 538 Covenant, Breach of 912 538 INDEX. 9W COMPLArNTT-- PLEADINGS — Continued. No. Page. CJovenant, Eneumbranec3, Breach of 913 53f) Covenant, Breach of 914 o40 Cre Comp Comp Comp Comp Comp Comp Comp Comp Comp Comp Comp Comp Comp Comp Comp Comp Comp Comp Comp Comp Comp Comp Comp aint — Lottery Tickets in Possession ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain ain — Maintaining a Nuisance — Malicious Mischief — Minor Employed in Exhibition — Minor Idle and Dissolute — Minor, House of Prostitution, Keeping... — Misdemeanor — Gambling — "!Move on," Refusing to — Murder, Assault to — Nuisance, Maintaining — Obstructing Railroad ; — Obstructing Streets -Office — Sale of Lottery Tickets, Keeping. — Opium Resort, Keeping -Opium Resort, Visiting — Peace, Disturbing -Petit Larceny -Privy not Connected with Sewer -Possession of Gambling Tools i — Promissory Note ; — Prostitution, Keeping House of -Prostitution, Visiting House of — Railroad, Obstructing — Receiving Stolen Goods -Refusing to "Move on" — Rent of Land — Robbery — Criminal Procedure ; — Rubbish, Street, Depositing — Rubbish on Street ; — Search-warrant — Larceny — Selling Liquors "Without License i — Sewer, Privy not Connected "With — Streets Obstructing ; — Street, Rubbish Depositing — Street, Rubbish on — Vagrant — Against -Violating Fire Ordinance — Visiting Gambling-house — Visiting House of Hl-fame i — Visiting Opium Den — Vulgar Language No. Page. 1142 6S2 1141 fiS2 1130 67f5 1148 es.'i 11.34 678 11.^2 687 11.3.-? 678 1121 671 1126 674 1117 669 1130 676 112.5 673 1136 679 1142 682 1149 686 1151 687 1146 684 1150 686 1129 676 1122 672 nil 666 11,39 681 1140 682 1125 673 ins 670 1126 674 1110 666 1114 663 1127 675 1128 675 1120 671 1145 684 1120 076 1136 679 1127 675 112S 675 1144 683 1147 68.5 1123 672 1140 682 1151 687 1124 673 1004 INDEX No. Paf«. COMPLETION OF WORK, See Liens. Notice of 381 273 CONTEMPT OF COITRT. See Affidavit; Order; Writ. Contempt Committed — Affidavit of 566 394 "(Dontempt Committed — Affidavit of 584 406 Contempt Committed — Affidavit of Juror, by 567 395 Contempt Committed— Affidavit of Juror, by 568 396 Contempt Committed — Affidavit of Interference With Court 570 397 Contempt Committed — Affidavit of Witness by 569 396 Contempt Committed — Affidavit of Rescuing Prisoner. 571 397 Contempt Committed — Affidavit of — Eeferee Neglects Duty 572 398 Contempt Committed — Affidavit — Refusal of Permission to Take Copy of Account 573 399 Contempt Committed — Affidavit of. Attorney Assuming to Act Without Authority 574 399 Contempt Committed — Affidavit — Abuse of Process of Court 575 400 Contempt Committed — Affidavit — Subsequent Applica- tion for Order Refused 576 401 Contempt Committed — Affidavit — Re-entry After Eject- ment 577 401 Contempt Committed — Affidavit — Disobedience of Court 's Order 578 402 Contempt Committed — Affidavit of Willful Neglect of Clerk to Enter Default 579 403 Contempt Committed — Affidavit of Willful Neglect to Serve Subpoena 580 403 Contempt Committed — Affidavit of Attorney Willfully Neglecting His Duty 581 404 Contempt Committed — Affidavit of Refusal to Obey Court 's Order 582 404 Contempt Committed — Affidavit of Attorney that Ac- tion is Pending and Testimony is Necessary 583 405 CONTINUANCE. See Affidavit; Order. CONTRACT. Agent to Sell Animals, to Sell Book to be Published — Subscription to Broker, Real Estate to Sell Broker, Real Estate to Sell 173 Builder's Builder's, Bond on 171 142 172 143 155 125 171 145 173 143 158 133 159 135 INDEX. 1005 CONTRACT— Continued. No. Page. Building, to Erect 160 ]:{5 Charitable Purpo-se, for 1-"*1 12.3 Church— Subscription to Build l--iO 1 17 Copartnership, Forming 162 137 Copartnership, Mercliants, Between 103 133 Copyright to Sell 1'9 1^6 Corporation — Subscription to Take Stock in 1";2 123 Creditor with Debtor 1'' l-*"* Cultivation of Land, for 1«0 146 Debtor with Creditor 177 144 Ditch to Construct 1-'J6 126 Dissolution of Partnorsiiip 16-J 140 General 1-^7 133 Land — Option to Purchase 178 145 Landlord and Tenants 175 144 Land, to Cultivate 180 146 Landlord with, and Tenants 174 143 Mason, with 161 136 Merchants — Forming Partnership 163 138 Notice to Dissolve Partnership and of Dissolution of.. 168 140 Option to Purchase Land 178 145 Partnership, Forming 162 137 Partnership, Forming 166 140 Railroad to Build — Subscription to 154 125 Eeal Estate for Sale of 170 141 Rent, Surety to Pay 176 144 Eight of Way, to Secure 1^3 124 Renewing Partnership 164 139 Sale of— Broker 's 173 143 Sale of Real Estate for 169 140 Specifications — Flume and Ditch to Construct 156 126 Submission to Arbitration 51 50 Submission to Arbitration . ; 52 50 Submission to Arbitration 56 51 Subscription Contract — Charitable Purpose 151 123 Subscription to Book to be Published 155 125 Subscription to Secure Right of Way 153 124 Subscription to Build Structure 150 117 Subscription to Build 15-1 125 Sue— Not to ISl 147 Surety with — Landlord for Rent 176 144 GENERAL NOTE: Acceptance, Notice of — Subscriptions — 120 Affection — Paternal l-' 1 "Against Encumbrancers" l"*! Agreements, Subscription — H^ 1006 INDEX. CONTEACT— GE^^:RAL NOTE— Continued. No. Page. Agreement. Supplemental — New Consideration ... — i;52 Assignment of Subscription — 121 Balls, to Give — Subscriptions — 118 Banquets, to Provide — Subscriptions — 118 ' ' A Bell Cow Subscription " — 119 "Blessings of Gospel," Subscriptions to Promote.. — 118 Blessings, to Promote — 118 Book, to Publish and Subscriptions Before and After Publication — 125 Building Fund Subscription — 121 Canal, to Dig — Subscriptions — 118 Cemeteries, to Lay Out — Subscription — 118 Changes in Contract to Build After Subscription.. — 122 Charitable Objects for — 118 Charitable Purpose — Ball and Dinner may be — 123 "Charitable Purposes," "MoneA' Available" and "Entertainments" .' — 123 Church — Subscriber to Build Would not Pay Unless Member of was Excluded from Speaking in.. — 121 Conditions of Contract — 131 Conditions Stipulated in — 119 Conditional Proposal — 132 Consideration — 131 Consideration Executed — 131 Consideration Imported — 131 Consideration, Option for — 132 Consideration — Prejudice Suffered — 131 Consideration Presumed, Whrn — 131 Consideration — Subscription for — 118 Consideration Valuable — 131 Contingent Subscriptious — 118 Contract — Creation of — 129 Contract to do Duty — 131 Contract— Offer— When It is — 132 Corporation and Subscription to Form One — 124 "Covenants — Usual" — 141 Creation of Contracts — 129 Death of Subscriber — 121 Delivery — Contract, Under — 132 Delivery and Payment — 142 Deposit, Withdrawal of — 142 Discharge of Subscriber — 121 Duplicate Delivered, Other not, what — 132 Duplicate Instrument — 132 Duty, to do, not Contract — 131 Entertainer under Subscriptions and "Sources of Enjoyment " — 123 Entertainment — Ball and Dinner as a "Charitable Purpose" — 122 Entertainments — Money Available and "Charitable Purposes" — 123 Executed Consideration — 131 "Execution" — Meaning of in — 132 Failure to Read Contract as an Excuse — 132 ' ' Further Asstirance " — 141 "General Warranty" — 141 Good Consideration — 131 INDEX. 1007 CONTEACT— GENETIAL NOTE— Continued. "Has Executed," Meaning of in Horserace Premiums — Subscription to Pay Insanity of Subscriber Insolvent Debtor 's Promise Joint and Several Liability on Subscription Paper. Judicial Notice Taken of Entertainments Liability Incurred on Faith of Subscription Liability of SubscriV^ers Liability for Subscription, When Fixed Loaded Contract — Party did not Know It was — No Relief Mark as Signature Modification of — Consideration for Money Available and Sources of Enjoyment Money Expended on Faith of Subscription Money Subscribed — Misuse of as to Subscription.. Moral Obligation — Consideration for Promise Mutual Obligations Neglect to Read Contract Negligible Omissions as to Negotiable Instrument — Subscription as New Consideration for Supplemental Agreement.. Notice of Acceptance of Subscription Obligation Moral or Paternal Obligations Mutual Offer — Contract, not an Offer — Retraction of Offer — Subscription, may be only Offer — Subscription, as an Omissions in Ontion — C'oTT^i deration for Option — Notice of Acceptance Upiiuu — Witiidruvval of Oral Promise to Subscribe Paternal Affection Payments Correspond to Word Done Payment and Delivery Payment, Partial Performance — Time of as to Subscription Promise of Insolvent Debtor Promise to Pay Barred Debts Promise to Subscribe ' ' Quiet Enjoyment " Racetracks,' to Maintain — Subsr ription Railroads, Subscription for Railroads Subscriptions to Build Reading — Neglect to Release of Subscriber Relief— Party did not Know It w^as Loaded Religious Belief and Subscription Retraction of Offer Revenue Stamps on Revocation of Subscription San Luis Obispo— And Sources of Enjoyment Schools to Build — Subscriptions Several to Sign, All Must * ' Sign, ' ' Meaning of in No. 120, 131, Page. ia2 121 131 122 123 120 122 119 133 132 132 123 121 121 131 118 133 133 121 132 120 131 118 i:u 132 119 120 133 132 132 132 122 131 121 142 142 120 131 131 119 1 II ns lis 121 ] :'.3 121 133 121 132 132 123 118 132 lOOS INDEX. CONTBACT— GENERAL NOTE— Continued. No. Pa^^ Signature to Contract ~ ^^^ Signature Includes Mark ^^^ Signature — Mark is — j^'^ Signature — Witness to 1^^ "Sources of Enjoyment"' by Subscription — 123 Specified Sums Promised — H^ Stamps on ■'^^- Subject Matter of Subscriptions — H*^ Subscriber — Conditions, Held to His — 119 Subscriber — Death of — 1-1 Subscriber — Discharge of — 1-1 Subscriber, Insanity of — 121 Subscriber — His Liability — H^^ Subscriber 's Promise — 119 Subscriber — Release of — 121 Subscription — Acceptance of 118, 120 Subscription — Action on — 119 Subscription — Agreements — 118 Subscription — Assignment of — 121 Subscription — Authority to Make — 118 Subscription for a Ball and Dinner, When a Charity — 123 Subscription, ' ' Bell Cow, ' ' Good ~ 119 Subscription to Book After Publication Thereof.. — 125 Subscription to Build, and Changes in Contract.. — 122 Subscription — Building Fund to — 121 Subscription, and Change of Religious Belief — 121 Subscription for Charitable Purposes — 123 Subscription — Church to Build—Subscriber "Would not Pay Unless a Member was not Allowed to Speak in it — Subscription and Costs of Suit Paid — 121 Subscription — Church Debt to Pay — 119 Subscription, Compliance with — 118 Subscription, Conditional — 118 Subscription, Conditions Precedent to — 118 Subscription — Negotiable Instrument as — 121 Subscription — Not Accepted — What — 120 Subscription — Notice of Acceptance — 120 Subscription — Oral Promise — 122 Subscription — Paper and Liability of Subscriber.. — 122 Subscription — Promise to Pay — 119 Subscription — Promote the Blessings of the Gos- pel, to — 118 Subscription and Public Policy — 118 Subscription — Railroads, as to — 121 Subscription — Railroad to Build — 124 Subscription, to Repave Highway — 120 Subscription Revoked — 121 Subscription — Consideration for — 118 Subscription — Consideration for — 119 Subscription — Contingent — 118 Subscription as Contract — 118 Subscription to Corporation and Membership of and to Form 1-"* Subscription — Delegates to Entertain •••_•••_ — 123 Subscription Depending on Other Subscriptions... — 118 Subscription — Dinner to Soldiers, to Give — 120 Subscription— Entertaining Body and Available Money INDEX. 1009 CONTEACT— GEITOEAL NOTE — Continued, No. Page. fcjubscriptiou to Erect btrueture — Payments — 1-1 Subscription and Expenditure Fairly within It... — 1-3 Subscription and Expenditure of Money on Faith of — 121 Subscription — Failure of Consideration for — 119 Subscription— General Expenditures on Account of — l-i> Subscription Gratuitous 119> ^-^^ Subscription — Horserace, Premiums to Pay — 119 Subscription Which Lead Others to Subscribe, to "a Bell Cow" — \^^^ Subscription — Liability Incurred on Faith of — 1-0 Subscription— Liability, When Fixed — 1 '9 Subscription — Like Other Promises is — 1-' Subscription— Minister, to Support — 11^ Subscription— Misuse of Money Subscribed — 1-1 Subscription — Money Expended on Faith of l-'-> Subscription— Mutual Obligations of Subscribers.. — 1 1 S Subscription — Stipulation as to Notice _. . 1^^ Subscription— Subscriber's Amount Eecovered in ^ Action " Subscription for Support, of Something iii* Subscription— Time of Performance — 1^0 Subscription— Verbal Promise to Subscribe — 1"*^ Subscription— "We Agree to Pay the Above ^ ^^^ Amount" ""^ Subscription— "We Each Agree" — l'^-^ Subscription "We Promise to Pay the Amount Set Opposite"^. .^.........•^••;; — J- Subscription— "We Promise to Pay Subscription-" We, the Subscribers, Promise to Pay" •.•• — ^^" Subscription, When Money is Expended on Faith f ......*•■• " l.*^\J ,,q Subscription, When an Offer ^^^ Subscription Work Done on Faith of — 1-0 Subscription — Work Done — Payment Corresponds.. — 121 Subscription— Theaters, to Build — 118 Subscription— Time of Performance — 120 Subscription for Woolen-mill, to Build — IIS Subscription— Work Done on Faith of — 120 Supplemental Agreement 13- Support — Agreements to 119 "Usual Covenants" — 141 Valuable Consideration — lj|l Verbal Promise to Subscribe — 120 "We agree to Pay" and Other Forms of Promise. — 122 "When a Person cannot Write," Meaning of — l.'^2 Withdrawal of Deposit — 1^2 Withdrawal of Option — 1-^2 Witness to Signature 1^^ Worthy Extent of Entertainments — 1-3 Written Promise 131 CONTOIEUTION. See Decree of Distribution; Order. Legatee to Devisee, by 1004 593 CONTROVERSY. Submission of Without Action 1005 599 New Forms — 64 1010 INDEX. COEONTTB. No. Page. Death— Certificate of 182 147 Death— Certificate of 190 150 Demand for Body 191 150 Jury of — Inquisition 183 148 Oath to Jury 188 150 Oath to Witness 189 150 Services, Certificate of 192 150 Statement to yupcrvisors 194 151 Subpoena of 184 148 Subpoena of 187 149 Subpoena of 193 151 Summons of 185 149 Warrant of 186 149 COEPOEATIONS. Annual Meeting — Notice of 218 163 Application for Change of Name 211 161 Application to Dissolve 201 156 Articles of Incorporation 195 151 Articles of Incorporation 197 153 Assessment Notice 223 1651 Assessment — Eescinded Order 224 165 Assessment — Waiver of Proceedings Under 227 166 Board of Directors — Continuance of Existence Under Code 199 155 Bond of Indemnity— Lost Stock 228 166 By-laws 232 168 By-laws 232 171i By-laws, Assent to Stockholders 233 172 By-laws, Certificate to 234 173 Business— Place of, Changed 207 159 Certificate — By-laws, to 233 172 Certificate of Incorporation — General 195 151 Certificate — Incorporation of Church 198 154 Certificate — Incorporation of Kailroad Company 197 153 Certificate — Eeincorporation 196 153 Certificate — Secretary's on Application to Dissolve 203 157 Change of Name — Application for 211 161 Change of Name — Order of Publication for 214 162 Change of Name — Objections to 215 162 Change of Name — Order for 216 163 Change of Place of Business 206 158 Co^es — Continued Existence of. Under 199 155 Deed by 203 203 INDEX. 1011 CORPORATIONS— Oontinned. No. Page. Delinquent Sale — Extending Time of Sale 226 166 Delinquent Sale — Notice of 225 165 Dial ncoryjoration, Decree of 2u5 158 Dissolution of, Application for 201 156 Dividend — Protest of Director Against 231 167 Existence Continued Under Codes 199 155 Existence Continued Under Codes by Stockholders 200 156 Final Resolution to Change Place of Business 210 160 Lost Stock — Bond of Indcmaity 228 166 Mortgage by 427 310 Notice of Annual Meeting 217 163 Notice of Annual Meeting 218 163 Notice of Annual Meeting 219 164 Notice of Annual Meeting 220 164 Notice of Application to Change Name 212 162 Notice of Application to Change Name 213 162 Notice of Application to Dissolve 204 158 Notice of Assessment 223 165 Notice of Change of Place of Business 209 160 Notice of Delinquent Sale 225 165 Notice of Directors' Meeting 222 165 Notice of Special Meeting of Stockholders 221 164 Order of Publication of Notice to Dissolve 202 157 Order Rescinding Assessment 224 165 Power of Attorney — Transfer of Stock 229 167 Proxy — Vote to 230 167 Proxy— Vote to 469 332 Sale — Delinquent — Time Extended 266 166 Stock Lost — Bond of Indemnity 228 166 Stockholders Adopt By-laws 233 172 Stockholders' Consent to Change Place of Business.... 208 160 Stockholders Continue Existence of Under Code 200 156 Waiver of Further Proceedings Under Assessment.... 227 166 GENERAL NOTE: By-laws — When Adopted — 172 Copied in a Book — 172 Directors — Number of — 152 Dividends — Protest Against — 167 Liability of, Director as to Dividends — 167 CORPORATION— ACKNOWLEDGMENT OF INSTRU- MENT BY. See Acknowledgment. Alaska (No Corporations There) Arizona 2 3 California 2 3 California — Prisoner 5 4 1012 INDEX. CORPORATION— ACKNOWLEDGMENT OF INSTRU- MENT BY— Continued. No. Page. Colorado 25 34 Idaho 3 3 Montana 3 3 Nevada 2 3 New Mexico ^^ ^" North Dakota 3 3 Oregon 1587 961 Prisoner — California 5 4 South Dakota 3 3 Utah 43 41 Washington 47 42 Wyoming 48 43 COSTS. See Affidavit. Memorandum of 1006 599 GENERAL NOTE. Bill of — 600 Filed and Served — 600 Service of — 600 Taxed — May be — 600 Taxed — Notification of — 600 Verified Bill — 600 CREDITORS. See Affidavit; Notice; Order. Notice to 1296 749 Order Establishing Notice to 1024 611 CREDITOR'S CLAIM. See Affidavit; Notice; Order. Action Pending 1012 605 Affidavit, Claimant of 587 408 Affidavit, Claimant of. No Notice of Publication 1018 608 Affidavit, Claimant of Corporation — Partnership 586 407 Affidavit, Claimant of— Had No Notice 588 409 Attorney to Defend Action, .Judge Appoints 1010 604 Claimant cannot be Found — Allowed 1017 607 Contingent 1008 602 Executor by 1009 602 Judgments 1013 605 Lost Instrument 1015 606 Lost Promissory Note 1014 606 Mortgage 1007 600 No Notice to Creditors— Affidavit of Claimant 1018 608 Notary, Certificate of 1021 609 Notary, Presentation by — Certificate 1022 610 Not Due 1011 604 Presented, Statement of 1023 610 INDEX 1013 CEEDITOE'S CLAIM— Continued. No. Page. NcfTloet to Approve Becomes Reieetion, When.!.'! Notary — Presentation by Not Due When Presented Note, Rill, etc., must be Exhibited if Demanded' ! Presented, When Proofs of May be Demanded ...........' Reference of Claim had in the Court in Charge of Estate Register of Claims .[[/'" Rejection of, by .Administrator. Rejection of, by Executor Rejection of, by Judge ....'. Return by Executor of Claims Presented!!.'!!] Suit vs. Estate by Executor or Administrator" verification of Touchers to Accompany ! ! Vouchers to be Produced 609 6U8 6U7 tiu Referee, Eejwrt of 1020 Reference of 1019 Vouchers, Demand for, Executor by 1016 GENERAL NOTE: Adminititrator 3 Claim Administrator's Indorsement on OUi Aduumstralor to tay Costs oi 8uit 607 Administrator Sues Estate 003 Affidavit of Loss of Instrument Gul Agtut of Claiiiiaiit I'reseutiug Oul Certihcate by Notary of Presentation — (iul Claim liojected and (;osts (j(j7 Claim Withdrawn and Copy Substituted — 601 Contingent Claims UOl Copy of Entry of Judgment Presented — 6U5 Copy of Instrument Base of Claims to be Filed, ^^lien — 601 Copy of may be Filed 601 Copy of Note, Bill, etc., to Accompany Claim,... — 601 Demand for Proofs 607 Escheated Claims 6o8 Executor 's Claims 601 Executor 's Indorsement on 60 1 Executor to Pay Costs of Suit — 6U7 Executor Sues Estate 6U.'3 Piled, to be, When gO 1 Indorsement of Approval by Judge of the Court.. GUI Instrument Lost — Copy Presented 601 Judge Appoints Attorney to Oopose Executor's Claim " _ go.3 Judgment Against Decedent must be Presented 605 Judgments Establishing Claims Only Prima Facie Evidence ' qq^ Judgment must be Presented 60.5 Judgment not Warranted by Law or Fact, may be Shown Justly Due, must be... Lien — Claim Secured bv Mortgage Claim Secured by !!!!!!!!! 601 60.^ 601 601 601 601 601 601 601 607 — 609 — 602 , fin 1 Rejection of. After Lapse of Time for Presentation — 601 — 601 — 601 — 611 — 603 — 601 — 601 — 607 1014 INDEX. CRIMINAL COMPLAINT. See Justice's Conrt. 1 -t. Page. DECLARATIOI"! OF HOMESTEAD. Sec Affidavit; Ap- praisement; Decree; Homestead; Order. DECKEE. See Judgment. Account, Settlement , 1025 612 Account, Settlement and Distribution 1026 613 Creditors, Notice to, Shown " 1024 611 Discharge, Final 1032 619 Disincorporation of 205 158 Distribution 1027 614 Distribution, Foreign Executor to 1028 616 Distribution, Settlement on 1029 616 Divorce — Homestead in 288 229 Divorce — Homestead in 289 225 Divorce — Homestead in 291 230 Divorce— Homestead in 292 230 Exempt Property Set Apart — Court's Motion 1030 617 Foreclosure 1033 620 Heirship of Deceased Intestate, Establishing 1035 623 Heirship, Testate to, Establishing 1034 622 Homestead Set Apart 1031 618 Order Establishing Notice to Creditors 1024 611 Partition of 1036 623 Sole Trader 1037 624 DEED— GEANT-^CONVEYANCS. Administrator or Executor by 236 192 Bargain and Sale 261 214 Bargain and Sale 238 194 Bargain and Sale 239 194 Corporation, by 249 203 Foreclosure — Sheriff 'son 255 208 Gift of 243 199 Grants, Statute Form 235 174 Guardian 's 244 199 Husband and Wife of 245 200 Mining Claim, of 246 201 Mining Company to Incorporate 247 201 Mining Company to Incorporate 248 202 Name, Former of, Grantor 1591 963 Name, Former of. Grantor 1592 963 Notice of Sale Under Trust 263 215 Quitclaim 250 204 Quitclaim 251 205 Quitclaim 252 205 Reconveyance Under Trust Deed 242 193 INDEX. 1015 DEED— GRANT - CONVEYANCE — Continued. No. Page. Right of VV ay 2o3 liO« Simple Form 237 193 Sheriff's on Foreclosure 255 20S Sheriff 's on Execution 254 206 Tax 2.10 209 Trust of 240 19.1 Trust of 241 197 Trust, Reconveyance, Under 242 19S Trustee 's Sale, Notice 263 215 Warranty 259 212 Warranty With Covenants 260 213 Warranty With Code, Civil 262 215 Warranty — Grantor, Against 257 211 Warranty — Grantor, Against 258 212 GENERAL xNOTE: Absolute Delivery of — 173 Acceptance — Cannot be Without Delivery — 182 Acceptance of, Shown by Facts — 1S2 Acknowledgment and Signing of as Evidence of Delivery — 182 Acknowledgment not Presumed by Delivery — 182 Acknowledgment of Payment of Consideration — Contradicted by Grantor — ISO Action to Recover Consideration for — 180 Actions to Recover Debts Secured by Trust Deed. — 190 Adverse Title — Party Claiming Under, and Deliv- erj' of — ISl Aftcr-aeqaired Title — 186 After-acquired Title and Quitclaim — 177 After-acquired Title — Attempt to Hide It and Courts of Equity — 18(3 After-acquired Title — "Grant, Bargain and Sell" and Warranty of Title — 1S6 Agent, Delivery to — 173 Agreement to Convey Land When the Owner "Could Make a Deed" is Binding — 109 Alienation — Restraint of — 187 Ambiguity of — 1"8 Appurtenances Pass by Use of the Word "Grant" — 186 Appurtenances, What are — 186 Appurtenances — Water Right as — 1S6 Assent to Delivery 183 Assignment of — 190 Attorney in Fact — A Grantor Must Sign Tvrice.... — 179 Attorneys at Law and Short Deeds — 194 Authenticated C-opy of as Proof of Delivery — 181 Bank Cheeks and Sales Under Trust Deeds — 191 Bargain and Sale and Future Estates — 178 Beneficiary Under Trust Deed may Purchase at Sale Under ' — 191 *'Bill of Sale"— What is — 173 "Blind"— "Sham, " and Courts of Equity — 186 Bondholder Under Trust Need not Demand Pay- ment Before Suit — 191 1016 INDEX. DEED— GRANT— CO^SrVEYANCE—GENTTRAIi NOTE— Continued. No. Page. Bondholder — Trust Deed and His Eight to Sue to Foreclose Trust Deed — 191 Book of Forms Without Seals to Dee'ds an Experi- ment — 179 Breach of Conditions 187, 188 Breach of Qovenant and Appurtenances — 187 California Codes and Trust Deeds — 192 California Conveyances and the Days of Noah... — 179 California Lawyers (Some) and Seals to Deeds.... — 178 California — Seal Unnecessary in — 178 Calls of Deed — Possession Under — 178 Canceling 173,182 Cancclcy2 4U DIRECTIONS. Officer, to 1053 633 DISSOLUTION OF COEPOEATION. See Affidavit; Cor- poration; Notice; Order; Petition. DISTRIBUTION. See Bond; Decree; Notice; Order; Peti- tion. EXECUTION. See Affidavit; Notice; Order; Supplements Proceedings. EXECUTOR AND ADMINISTRATOR. In this book, synonymous. See Affidavit; Bond; Inventory and Appraisement; Notice; Order; Petition. Administrator — Objections to his Appointment 1056 634 Administrator — Request for his Appointment by Person Entitled to Letters 1055 634 New Forms — 65 1028 INDEX EXECTrrOR AND ADMINISTEATOR — ContinTied, No. Page. Executor — Account to Kondcr — To be Arrested 1006 637 Executors — Acting One for Other 1059 636 Executor — Concealed or Embezzled Property — Com- plaint to Court 1060 636 Executor — Contract to Pay Debt of Estate, of 1063 638 Executor — Lease, Court 's Order for 1062 638 Executor — Objections to Appointment 1057 635 Executor — Objections to Appointment 1058 635 EXHIBIT. See Account; Eetum. FrNDINGS. Decision of Court 1068 flS GUARDIAN. See Notice; Order; Petition. Appointment of 1168 697 Assent of all Persons to Sale by 1071 644 Consent to Sale by 1072 644 Guardianship, Letters of 1069 643 Nomination of. Minor by 1070 644 Oath of Office 603 417 Removal of 628 432 HABEAS CORPUS. See Order; Petition. Writ of 1580 946 HOMESTEAD. See Assignment; Decree; Notice; Order; Petition. Abandonment of 271 222 Admeasurement of, by Appraisers 299 233 Appearance of Public Administrator on Application to SeU 284 228 Application to Appraise Value of 272 223 Application of Husband to Sell Homestead— Insane Wife 282 227 Application of Wife of Insane Husband to Sell 287 229 Appointment of Appraisers to Value 274 223 Appraiser 's Oath 275 224 Assignment of to Widow on Court's Motion — Separate Property 296 232 Community Property, and Assignment of on Divorce Decree 291 230 Constnt of Wife to Husband's Declaration of 267 221 Cruelty, Extreme, and Division of 288 229 Declaration, Husband, by 265 219 Declaration, by Husband and Wife's Separate Property 267 221 Declaration — Unmarried Person, by 268 221 Declaration — Wife, by 264 217 Deelaration, Wife on her Separate Property 266 221 INDEX 1027 HOMESTEAD — ContintK^d. No. Page. Declaration — Wife's Separate Property— She Consents 267 221 De«ree of Divorce and Clanse as to 2RS 229 Divided, to be 279 226 Division of 289 229 Division of Proceeds of 290 230 Divorce, Decree in 288 229 Divorce, Decree in 201 230 Divorce, Decree in 292 230 Equal Division of by Judgment 288 229 Equal Division of by Judgment 289 229 Extreme Cruelty and Division of 288 229 Pee of Public Administrator Remitted 286 229 Head of a Pamily— Death and 293 230 Head of a Family— Declaration by 268 221 Head of a Family— Declaration by 269 222 Innocent Party and Limited Period of Holding 291 230 Innocent Party Takes During Life 292 230 Insane Husband 's Homestead to be Sold 287 229 Insane Persons — Notice to Sell 283 228 Insane Wife — Application to Sell her Homestead 2<82 227 Insane Wife 's. Ordered Sold 285 228 Inventory of 298 232 Inventory — Set Apart in 299 233 Notice to Sell, Insane Person 's 283 227 Notice of Time for Hearing Application for Appraise- ment of 272 223 Order Appointing Apprnisors 274 223 Order Conferring Majority Report of Appraisers 302 234 Order — Execution to Issue Against Surplus Land 280 226 Order Fixing Compensation oi Appraisers 281 227 Order— Homestead Divided 279 226 Order— Homestead to be Sold 278 223 Order Rejecting Majority Report of Appraisers 303 234 Order to Sell, Insane Wife 's 285 228 Order Setting Apart and Execution to Issue for Surplus 280 226 Order Setting Appraiser's Report for Hearing 301 234 Probate — Separate Property of Deceased 295 231 Probate — Support of Family for. Setting Aside 294 231 Public Administrator and Insane Persons 2S4 273 Public Administrator Remits liis Fee 2*^6 229 Report of Appraisers of 298 232 Report of Appraisers of 299 233 Report of Appraisers of — Dissenting 300 233 Report of Appraisers — Hearing of 301 232 Report of Appraisers — Land Divided 277 225 1028 INDEX HOMESTEAD— Continned. No. Pa^. Report of Appraisers — Land not Divided 276 224 . Report of Appraisers, Majority Confirmed 302 234 Report of Appraisers, Majority Rejected 303 234 Separate Property Assigned to Widow 297 232 Separate Property of Deceased and Assignment of.... 295 231 Set Apart 1479 851 GENERAL NOTE: Abandonment of — 223 Acknowledgment of Declaration is Essential and Conclusive— When — 218 Acknowledgment to the Same as to a Conveyance of Land — 222 Actual Cash Value — 217 Attack on — Truth of Recitals in Declaration must be Shown — 218 Brain Matter and Law Study — 231 California Pastoral Judicial Innocence — 217 Claim of Title to Premises — 219 Community Property and Selection of — 218 Compliance with Homestead Law — 218 Compliance with Statute and Validity of — 218 Consent of "Wife — When Necessary — 218 Cotenancy cannot Properly be — 219 Creditors Protected Against — 217 Declaration Need not Establish the Fact that the Declarant is the Head of the Family — 218 Declaration — Recitals in to be Established if At- tacked — 218 Declaration — What to Contain — 216 Declaration of Wife — Contents 216-218 Description of Premises — 219 Disposal of by Spouse not Permitted 217, 218 Dwelling-house, as — 218 Exemption of — 217 Exemption of Proceeds of on Execution Sale.... 225, 226 Facts of Residence — How Determined — 218 Family — Home of — 217 Grandchild Baby as a Family — 231 Gray Brain Matter and Law Studies — 231 Hay, Selling, Product of the Land — 219 Head of Family 216, 231 Head of Family, Child may be 216, 231 Head of Family, Wife may be 216, 231 Home of Family — 217 Homestead Law a Remedial Measure — 217 Homestead Law Must be Complied with — 218 Homestead not Always a Permanent Home — 219 Homestead — How Created 216, 231 Hotel as Homestead — 219 Intention and Residence — 218 Invalid if Declaration does not State that Claim- ant is Head of a Family — When — 218 Joint Tenancy ci^not be Properly — 218 Judgments Against — 217 Judicial Innocence in California — 217 Land, Quality of, not a Question — 219 INDEX. 1029 HOMESTEAD— GENT:R A L NOTE — ContiTinrrl. No. Pa?p. Land Washed Away to Obtain Gold, Bring — 219 Liens Against 217 Liens Recorded 216 Mandatory Statute — No Exceptions — 218 Married — Declaration Need not State that Declar- ant is — 218 Mechanics' Liens Against — 217 Members of Family not Necessary to St;.te — 218 Miner's Cabin, as — 219 Money, Representing Value of — 223 Mortgages Against — 217 One Homestead at a Time — 218 Pasture, as — 219 "Promanently Reside," Meaning of — 217 Premises — Residence on — 218 Premises, Value of — 21G Probate Homestead and Declared Homestead — 218 Protection Against Creditors — 217 Quantity of Land is Unlimited — 219 Recorded Liens — 216 Eesidonce, Actual — 218 Residence — Fact of. How Determined — 218 Residence and Intention — 218 Residence to be Permanent Until It is Changed.. — 217 Residence on Premises — 218 Selection of — 216 Signing Declaration by Initial Letter of Chris- tian Names — 218 Sister as a Family — 231 Sold and Proceeds Divided 290 230 Statute not Complied with — No Homestead — 218 Statute is Mandatory — 218 Surplus Land in Execution Against 280 226 "Tenancy in Common, " Property cannot be — 219 Termination of — 223 Title to Premises — Not Necessary — Claim of .... — 219 Ultimate Pact is that Declarant is the Head of a Family — 218 Unmarried Claimant — How to Proceed , — 222 Use of Property as a Test of Intention — 219 Value of Homestead — 225 Value of Premises — 216 Vendor 's Liens Against — 217 "We" in Declaration is a Statement that the Spouses Joined in It — 218 Who may Select — 216 Widow — Court Assigns It to Her — Common Prop- erty 296 232 Wife 's Declaration — What must Contain — 218 INDICTMENT OR XNTOEMATION. See Bail; Bond; Criminal Complaints. Indictment, Information 1073 645 INJUNCTION. See Order. INSTEUCTIONS. Officer to 1171 698 Officer, to 1172 698 Officer to 1174 699 1030 INDEX. INVENTORY ATTD APPRAISEMENT See afSdarit; Or- der; Homestead; Petition. No. Pajg*©. Affidavit of Administrator to 599 416 Bill of, Appraisers by 1080 650 Estate of Ward — Guardian, of 1077 649 Inventory — Appraisement 1074 646 Money Only 1075 648 Property Discovered Aft^r First Inventory 1078 649 Eeal Estate — After Sale 1076 648 Supplemental _. 1079 650 JUDGMENT. See Decree. Arrest 1175 699 Competency, Person is Restored to 1091 657 Confession of 1084 652 Confession — Docket Entry 1177 700 Confession — Money Eeceivcd 1176 700 Court by 1086 653 Damages in Lien of Retnm 1178 701 Default— Clerk by 1087 654 Default — Court by 1088 655 Divorce — Pinal 10S2 651 Divorce — Final 1083 652 Divorce — Interlocutory lOSl 651 Entry of Confession of 1085 653 Satisfaction of 1089 656 Verdict on 1090 656 JUSTICE OF THE PEACE. See Acknowledgment and Pioof of Instruments; Certificate; Justice's Court. JUSTICE'S COURT. See Answer; Complaint; Subpoena (When not found under this head). Abstract, Judgment, of 1092 657 Action, Application to Join in 1107 665 Action Transferred — Higher Court 1093 658 Affidavit — Action, Transfer of 1096 659 Affidavit— Arrest, Order of, for 1094 658 Affidavit — Arrest, Order of, for 560 390 Affidavit — Arrest, Order of — Fraudulent Debtor, for.. 561 390 Affidavit — Arrest, Order of — Removal of Property, tor 562 391 Affidavit— Attachment 563 392 Affidavit — Attachment vs. Nonresident, for 564 393 Affidavit — Attachment to Procure Ordei of Examina- tion 589 409 Affidavit — Attachment, Resident, vs 1097 659 Affidavit — Change Place of Trial — Interest — Prejudice 1095 659 INDEX 1031 JUSTICE'S COUBT — Continued. No. Page. AflBdavit — Change Place of Trial — Justice a Witnf>fW.. 1100 661 Affidavit — Change Place of Trial — Prejudice Citizens.. 1099 660 Affidavit — Claim and Delivery of Personal Property, on 565 39:? Affidavit — Contempt, Abase of Process of Court 575 400 Affidavit — Contempt, Application, Subsequent for Order Refused 576 401 Affidavit — Contempt, Attorney Willfully Neglecting Duty 581 404 Affidavit — Contempt, Attorney without Authority .... 574 399 Affidavit — Contempt Committed 566 394 Affidavit — Contempt Committed 584 406 Affidavit — Contempt, Copy, Refusal of Permission to Take 573 399 Affidavit — Contempt Proceedings, Unlawful Interfer- ence with 570 397 Affidavit — Contempt, Juror Improperly Conversing..., 567 395 Affidavit — Contempt, J..:ror Unlawfully Conversing .... 568 396 Affidavit — Contempt, Order of Court, Refusal to Obey 582 404 Affidavit — Contempt, Order Once Refused, Subsequent Application for 576 401 Affidavit — Contempt, Referee Neglects to Take Testi- mony 572 398 Affidavit— Contempt, Refusal to Obey Court's Order.. 582 404 Affidavit — Contempt, Rescuing Person in Custody of Officer 571 397 Affidavit — Contempt, Subpoena, "Willful Neglect to Serve 580 403 Affidavit — Contempt, Testimony, Referee Neglects to Take 572 398 Affidavit — Contempt, Willful Neglect to Serve Subpoena 580 403 Affidavit — Contempt, Witness Unlawfully Detaining . . 569 396 Affidavit — Continuance 1102 662 Affidavit — Continuance for 585 407 Affidavit — Creditors, Publication of Notice to 620 426 Affidavit— Default, to Set Aside 1101 661 Affidavit — Deposition — Commission to Examine Witness 595 413 Affidavit — Deposition, Time Shortened for Notice to Take 592 411 Affidavit — Judgment Debtor, Order for Examination of Debtor of -30 410 Affidavit— Justice — Witness 1093 660 Affidavit— Mail, Service of, by 611 422 Affidavit — Mail, Service of Summons by, of 019 426 Affidavit — Notice to Creditors, Publication of 0'2J 426 1032 INDEX JTTSTICE'S COURT— Continued. No. Page. Affidavit — Order of Arrest, for 1094 658 Affidavit — Order of Arrest, for 560 390 Affidavit — Order of Arrest — Fraudulent Debtor 561 390 Affidavit — Order of Arrest, Eemoval of Property, for 562 391 Affidavit — Order of Examination, Attachment to Pro- cure 589 409 Affidavit — Order for Examination of Debtor of Judg- ment Debtor 590 410 Affidavit — Order Regulating Time for Examination of Witness 594 412 Affidavit— Party, Substitution of 616 424 Affidavit — Party, Substitution of 1105 664 Affidavit — Party of — Testimony of Witness Necessary. 583 405 Affidavit— Posting any Notice, of 622 428 Affidavit— Posting Notice, of 621 427 Affidavit— Publication of Notice to Creditors 620 426 Affidavit — Publication of Summons, of 624 428 Affidavit — Publication of Summons of 626 430 Affidavit — Eedemptioner 1106 664 Affidavit— Resident, Attachment vs 1097 659 Affidavit — Search-warrant for 1103 662 Affidavit — Seach-warrant — Deposition on Demand for. 1104 663 ! Affidavit— Service by Mail, of 611 422 Affidavit— Service of Notice, of 612 423 Affidavit— Service of Notice— Clerk, etc., of 613 423 Affida\at— Service — Office Table — of 614 423 Affidavit— Service of Summons of 625 429 Affidavit — Services of Summons by Mail, of 619 426 Affidavit — Set Aside Default, to 1101 661 Affidavit— Substitution of Party 1105 664 Affidavit— Substitution of Party 616 424 Affidavit — Summons, Publication of 624 428 Affidavit — Summons, Publication of 626 430 Affidavit— Summons, Service, of 625 429 Affidavit— Sureties of 617 425 Affidavit — Sureties Annexed to Officer's O.'Heial Bond.. 618 425 Affidavit — Tender of Payment, Demaud to be Re- stored to Possession 627 431 Affidavit — Time Shortened for Notice to Take Deposi- tion 592 411 Affidavit — Transfer of Action 1096 659 Affidavit — Trial, Change Place of — Interest, Prejudice 1095 659 Affidavit — Trial, Change Place of — .lustice Witness 1100 661 - Affidavit — Trial, Change Place of — Prejudice of Citi- zenB 1099 660 INDEX. 1033 JUSTICE'S COURT — Continned. No. Page. Affidavit — Witness, Commission to Examine — Deposi- tion 595 413 Affidavit — Witness Necessary, to Take Testimony.... 583 405 Affidavit — Witness, Order Begulating Time for Exam- ination of 594 412 Amendment of Pleadings 1589 962 Application — Action to Join in 1107 665 Attachment — Defaulters 1108 665 Complaint — Air, Insufficient, Fresh, per Capita 1138 680 Complaint — Animals, Cruelty to 1143 683 Complaint — Assault — Deadly Weapon 1116 669 Complaint — Assault to Murder 1117 669 Complaint — Burglary — First Degree 1119 670 Complaint — Claim and Delivery 1155 689 Complaint — Commitment on 1154 688 Complaint — Commmon Drunkard 1135 679 Complaint — Criminal — Indorsement on 1112 667 Complaint — Criminal Procedure — Bobbery 1114 668 Complaint — Cruelty to Animals 1143 Complaint — Deposition 1113 Complaint — Discharging Firearms 1137 680 Complaint — Disturbing Peace 11^6 684 Complaint — Doing Business Without License 1131 677 Complaint — Doing Business Without License — Ordin- ance 1^32 677 Complaint — Drunkard, Common 1135 679 Complaint — Exhibition, Minor Employed .in 1134 678 Complaint — Expiration of Term, Holding After 1156 690 Complaint — Firearms Discharging 1137 6S0 Complaint — Fire Ordinance, Violating 1147 683 667 685 Complaint — Forgery 111-3 668 Complaint — Gambling-house, Visiting ". 1123 672 Complaint — Gambling, Misdemeanor 1121 671 Complaint — Gambling Tools, Possession of 1122 672 Complaint — Goods Sold and Delivered 1109 665 Complaint — Holding After Expiration of Term 1156 690 Complaint— Holding After Eent Due 1157 691 Complaint — Idle and Dissolute Minor n")2 687 Complaint — Indorsement on. Criminal 1112 667 Complaint — Insufficient Fresh Air per Capita 113S 680 Complaint — Keeping House of Hl-fame 1139 681 Complaint — Keeping Minor in House of Prostitution.. 1133 678 Complaint— Keeping Office for Sale of Lottery Tickets. 1142 682 Complaint — Keeping Opium Resort 1149 686 Complaint — Land, Eent of 1110 66G 1034 INDEX JUSTICE'S COTTET — Continued. No. Page. Complaint — Larceny, Search-wai-rant 1120 671 Complaint — License, Doing Business Without 1131 677 Complaint — License, Doing Business Without 1132 677 Complaint — License, Selling Liquors Without 1145 684 Complaint — Lottery Tickets, Keeping Oifice for Sale of. 1142 682 Complaint — Lottery Tickets in Possession 1141 682 Complaint — Maintaining Nuisance 1130 676 Complaint — Malicious Mischief 1148 68o Complaint — Minor Employed in Exhibition 1134 678 Complaint — Minor, Idle and Dissolute 1152 687 Complaint — Minor, Keeping in House of Prostitution.. 1133 678 Complaint — Misdemeanor — Gambling 1121 671 Complaint — ' ' Move on, ' ' Eefusing to 1126 674 Complaint — Murder, Assault to 1117 669 Complaint — Nuisance Maintaining 1130 676 Complaint — Obstructing Bailroad 1125 673 Complaint — Obstructing Streets 1136 679 Complaint — Opium Den, Visiting 1151 687 Complaint — Opium Eesort, Keeping 1149 686 Complaint — ^Peace Disturbing 1146 684 Complaint — Petit Larceny 1150 686 Complaint — Possession of Gambling Tools 1122 672 Complaint — Privy not Connected with Sewer 1129 676 Complaint — Promissory Note 1111 666 Complaint — Prostitution, Keeping House of 1139 681 Complaint — Prostitution, Keeping Minor in House of.. 1133 678 Complaint — Prostitution, Visiting House of 1140 682 Complaint — Eailroad, Obstructing Ii25 673 Complaint — Eeceiving Stolen Goods 1118 670 Complaint — Eefusing to "Move on" 1126 674 Complaint — Eent Due, Holding After 1157 691 Complaint — Eent of Land 1110 666 Complaint — Eobbery, Criminal Procedure 1114 668 Complaint — Eubbish on Street 1128 675 Complaint — Eubbish, Street, Depositing 1127 675 Complaint — Seach-warrant — Larceny 1120 671 Complaint — Selling Liquors Without License 1145 684 Complaint — Sewer, Privy not Connected with 1129 676 Complaint — Stolen Goods, Eeceiving 1118 670 Complaint — Streets, Obsirucling 1136 679 Complaint — Street, Eubbish on 1128 675 Complaint — Street, Eubbish Depositing on 1127* 675 Complaint — Threats to Commit Offense 1153 688 Complaint — Vagrant vs 1144 683 Complaint — Violating Fire Ordinance 1147 685 INDEX. 1035 JUSTICE'S COTJRT— Continned. No. Tage. Complaint — Visiting Gambling-honse 1123 672 Complaint — Visiting House of Ill-fame 1140 6S2 Complaint — Visiting Opium Den 1151 6S7 Complaint — Vulgar Language 1124 673 Controversy — Submission Without Action of 1158 692 Defaulter's Attachment 1108 G65 Defaulters, Attachment for 1052 632 Demand — Surrender of Premises 1030 625 Demurrer — Answer Ambiguous, etc 1048 628 Demurrer — Answer — Not Stating Sufficient Facts 1047 62-? Demurrer — Complaint not Stating Cause of Action 1040 626 Demurrer — Complaint Uncertain, etc 1045 627 Demurrer — Defect of Parties 1043 627 Demurrer — Misjoinder of Causes of Action 1046 627 Demurrer — Misjoinder of Parties 1042 626 Demurrer — Statute of Limitations 1041 626 Demurrer — Want of Jurisdiction of Person 1044 627 Deposition — Commission to Take 1049 622 Deposition — Instructions to Commissioners 1050 629 Directions, Officer, to 1053 633 Docket— Certified Copy 1160 694 Docket— Justice of Peace 1159 693 Execution 1161 695 Execution Against Administrator Upon Decree for Pay- ment of Debts 1064 639 Execution — Certificate — Redemption 1164 696 Execution— Costs 1162 695 Execution — Deficiency of Sale 1066 640 Execution — Instructions to Officer 1170 698 Execution — Judgment for Money 1065 639 Execution — Order of Sale 1067 641 Execution — Property Claimed by Third Person 11G5 696 Execution — Renewal — Indorsement 1163 696 Exempt — Claim Property by Third Party 1166 697 Guardian — Application — Appointment 1167 697 Guardian — Appointment of 1168 6'i) Inspection, Request for 1169 Instructions to Officer 1172 69S Instructions to Officer 1171 69S Instructions to Officer 1173 699 Instructions to Officer — Personalty 1174 699 Judgment, Abstract of 1092 657 Judgment— Arrest of 1175 699 Judgment — Confession — Docket Entry 1177 700 Judgment — Confession — Money Received 1176 700 697 1036 INDEX. JUSTICE'S COITRT— Continnod. No. Page. Judgment — Damages in Lieu of Rt'turn 1178 701 Judgment— Defendant, for 1179 701 Judgment, Defendant for — Counterclaim 1181 701 Judgment — Kduciary Capacity 1182 701 Judgment — Fine and Imprisonment 1183 702 Judgment — Imprisonment 1184 702 Judgment — Personal Property 1186 703 Judgment — Personal Property, Value 1187 703 Judgment for Plaintiff— Counterclaim 1180 701 Judgment — Plaintiff — Money Demand 1185 703 Judgment — Property — Return 1188 704 Judgment — Return — Damages in Lieu of 1178 701 Juror — Summons 1189 704 Memorandum — Costs and Disbursements 1190 704 Notice— Appeal 1194 706 Notice — Application for Discharge from Imprisonment 1207 710 Notice — Application — Discharge from Imprisonment for (C. C. P., sec. 1143) 1320 760 Notice to Attorney— Time and Place of Trial 1193 705 Notice that Case has been Transferred 1287 745 Notice— Case Transferred 1192 705 Notice — Claim is Disputed 1314 758 Notice to Claimant— Claim Disputetd 1199 707 Notice to Creditor of Laborer 's Claim 1317 759 Notice to Creditor or Defendant — Laborer's Claim 1196 706 Notice — Claim Disputed by Creditor 1318 760 I Notice — Claim Disputed by Defendant 1315 759 Notice, Decision, of 1203 709 Notice of Decision 1286 744 Notice — Defendant Excepts to Sufficiency Sureties.... 1204 709 Notice to Defendant — Sureties must Justify 1205 709 Notice — Deposition, Taking of 1322 761 Notice — Deposition, Taking of 1323 762 Notice — Deposition to Take 1325 763 Notice, Motion of— Set Aside Default to 1202 708 Notice to Occupant— Real Estate 1209 711 Notice to Officer — Laborer 's Claim 1195 706 Notice to Officer — Claim of Laborer's Claim 1316 759 Notice to Officer — Laborer's Claim Disputed by Crcd- .itor 1197 707 Notice to Officer — Laborer's Claim Disputed by De- fendant 1198 707 Notice to Parties— Time and Place of Trial 1191 705 Notice to Plaintiff— Adverse Claim 1208 710 Notice to Plaintiff of Adverse Claim 1285 744 INDEX. 1037 JTTSTICE'S COURT— Continued. No. Page. Notice to PlaintiflF — Arrest J200 703 Notice to Plaintiff — .Justification — Sureties 12ij6 710 Notice to Plaintiff — Substitution of Party Defendant. , 1201 708 Notice — Witness Out of the State — Motion for Com- mission to Examine l.'^24 762 Order — Arrest — Civil Cases l.^.'JG 768 Order — Arrest Indorsed on Summons 1210 711 Order — Arrest by Sureties 1216 714 Order — Bringing in Party — Docket Entry 1221 715 Order — Commitment on 1211 712 Order — Contempt, Conviction of 1388 79.5 Order — Contempt, Juror Defaulting 1385 794 Order— Contempt, Purged of 1390 796 Order— Debtor to be Examined 1372 786 Order— Default Opening 1220 715 Order — Deposition, Commission to Take 1365 788 Order— Docket 1218 714 Order — Examination — Debtor of Defendant 1215 713 Order — Examination of Party 1214 713 Order— Execution Keealling 1223 716 Order— Inspection for 1212 712 Order— Intervention Allowed 1213 712 Order — Intervention Allowing — Docket 1219 715 Order — Juror Defaulting — Contempt in 1385 794 Order— Opening Default 1220 715 Order— Party Bringing in 1221 715 Order — Release, Levy ' 1222 715 Order— Substitution of 1217 714 Order— Summons, Publication of 1446 829 Order — Sureties, Arrest by 1216 714 Petition — Relief vs. Forfeiture of Lease 1516 890 Return — Attachment or Execution — Levy on Credits, etc 1238 721 Return — Attachment or Execution — Levy on Shares in Corporation 1239 722 Return — Attachment of Personalty 1235 719 Return — Attachment of Personalty 1236 720 Return— Execution— No Property Fund 1233 719 Return — Execution Satisfied 1234 719 Return— General 1232 719 Return— Sale of Real Estate 1237 720 Return of Search-warrant — ^Inventory Attack ; . 1224 716 • Return — Service of Notice — Case set for Trial on Hear- ing Demurrer 1227 717 Return — Summons 1230 718 1038 INDEX JUSTICE'S COURT— Continupd. No. Page. Return — Summons on Arrest 1229 718 Eetum — Summons vs. — Corporation 1226 717 Eeturn — Summons of — County, etc 1225 716 Eeturn— Summons — County or City, etc 1228 717 Return — Summons of — Minor Defendant 1231 718 Stipulation as to Facts 1241 723 Stipulation, Transfer Action, to 1240 722 Subpoena 1242 723 Subpoena — Affidavit, Secure Nonresident Attendance.. 1541 917 Subpoena— Affidavit of Service 1542 918 Subpoena — Bring Papers 1545 919 Subpoena — Civil Proceedings 1539 916 Subpoena — Criminal 1243 724 Subpoena — Duces rectum — Civil Proceedings 1546 920 Subpoena — Order, Witness to Attend 1'547 920 Subpoena — Witness Nonresident 1540 917 Summons 1244 724 Summons, Alias 1245 725 Summons, Certificate Accompanying 1247 726 Summons — Order of Arrest on 1246 725 Sureties, Justification of — Civil Cases 1275 738 Undertaking — Arrest, Order of 828 491 Undertaking— Arrest, Part of Defendant on 829 492 Undertaking— Arrest by Plaintiff 827 491 Undertaking, Appeal, on 1253 729 Undertaking — Appeal from Fine and Imprisonment... 1250 727 Undertaking — Appeal from Judgment of Imprisonment. 1251 728 Undertaking — Attachment 1248 726 Undertaking — Attachment on 830 492 Undertaking— Attachment on Levy Stay 833 495 Undertaking— Bail Bond— General 1252 729 Undertaking— Bail Forfeited 834 496 Undertaking— Bail Forfeited— Money Deposit 835 496 Undertaking — Bond for Appearance of \V itness, etc 1254 730 Undertaking — Claim and Delivery, on 836 497 Undertaking— Claim and Delivery, on 837 498 Undertaking— Forfeited Bail 834 496 Undertaking — Keep the Peace 1255 731 Undertaking — Levy, Stay of Attachment 833 495 Undertaking — Money Deposit Forfeited 835 496 Undertaking — Plaintiff Arrest, on 827 491 Undertaking — Postponement of Action 1256 731 Undertaking, Release of Attachment 1249 726 Undertaking — Replevin — Return to Defendant 837 498 Venire 1257 732 INDEX. 1039 JUSTICE'S COUBT— Continued. No. Pagre. Venire — Indorsement 12)8 TM Verdict — Defendant, Counterelainn 1260 733 Verdict— Defendant (or Plaintiff) 12r,9 733 Verdict— Plaintiff 1261 733 Verdict— Replevin-Defendant 1263 733 Verdict — Replevin for Defendant 12G4 734 Verdict— Replevin — Plaintiff 1262 733 Verdict — Replevin — Special Portions of Property 1268 735 Verdict — Replevin — Specific Portions of Property.... 12(35 734 Verdict — Special Issues 1267 735 Verdict — Special Issues 1269 735 Verdict — Special Issues 1270 736 Verdict — Special Issues Submitted 1266 734 Warrant — Arrest on 1271 736 Warrant — Indorsement Service of 1272 737 Warrant — Search 1273 737 Writ, Arrest — Witness 1584 954 Writ — Attachment 1583 953 Writ, Juror Attachment 1585 954 Writ — Possession 1578 944 Writ, Restitution 1579 945 JUSTIFICATION OF SURETIES. See Affidavit; Bail; Bond; Order; Petition; Sureties. Affidavit for 617 425 Civil Cases, in 1275 738 Criminal Cases, in 1276 739 GENERAL NOTE: Affidavit of Sureties — 739 Authority of Magistrate as to Residence of, on.. — 739 Bail — Magistrate Given Discretionary Power as to Examination of Sureties — 739 Bail Must Justify by Affidavit Before the Magis- trate — 739 Bail — Qualification of — 739 Bail — Residence of Sureties — Authority of Magis- trate, as to — 739 Freeholders to be — 7o9 Householders, to be — 739 Residents, to be — 739 Specified Sum to be Worth — 739 Sureties — Must be, When Several Justify, Equiva- lent to Two Sufficient — 739 Two or More Sureties — On Bond — 739 I»ABOEER. See Lien; Mining; Notice. Notice of Change of Terms of Lease S65 258 Notice to Attachment Officer 384 274 1040 INDEX. LAITOLORD. See Demand; Lease; Notice. No. Page. Notice, Work on Logs 386 275 Notice to Quit 360 258 Notice to Pay Rent or Surrender Premises 364 257 Notice to Perform — Covenants of Lease 363 257 Person in Possession to Purchaser 369 259 Notice Terminating Tenancy 366 258 Notice Terminating Tenancy 367 259 LEASE. See Notice; Order; Petition. Acknowledgment that Tenancy Exists 368 259 Agreement to Continue Lease After Expiration of Term 336 247 Alteration — Lessee not to Make 321 242 Assign — Lessee not to 321 242 Assign "Without Permission, not to 344 249 Building Excepted 352 251 Change of Terms of, or Surrender Possession 365 253 Circus — Exception of Balcony to See It Go by.... 354 252 Common Form 305 236 Common Form 306 236 Condition Sale Under Form of Lease 356 253 Covenants — Assign, Underlet, Alter, Improve, not to . . 321 242 Covenant for Continuing After Expiration of Term.... 336 247 Covenant Determining 319 242 Covenant — Exception of Timber 324 243 Covenant— Holding Over 323 346 Covenant — Ironclad — Ee-entry 311 239 Covenant — Leave to Build 328 244 Covenant — Lessee — Burn the Straw, not to 326 243 Covenant — ^Lessee to Purchase 320 242 Covenant — Lessee to Repair 332 245 Covenant to Repair 313 240 Covenant — Lessee — Repair to — Amount Stated 346 250 Covenant — Lessor may Determine His Option 318 242 Covenant — Lessor may Enter 314 240 Covenant — Lessor may Enter and Inventory 331 245 Covenant — Lessor to Sell Inheritance to Lessee 341 249 Covenant — Lessee may Quit 316 241 Covenant — Lop Trees, not to 327 244 Covenant — Loss by Fire 357 254 Covenants — Notice to Perform 363 257 Covenant — Offensive Trades, not to Carry on 329 244 Covenant — Possession to Deliver 317 242 Covenant — Quiet Enjoyment — Ironclad 315 241 Covenant — Renewal 351 251 Covenant — Rent to Pay — Ironclad 312 240 LNDEX • 1041 LEASE— CJontintK'd. No. Page. Covenant — Repairs as to 225 243 Covenant— Taxes aa to 323 243 Covenant — Taxes and Repairs Deducted from Bent 347 250 Covenant — Timber aa to 324 243 Covenant — Underlet, not to 307 236 Covenant — Use aa Work or Sehoolhoose, not to 345 250 Crop — On Shares 309 238 Determination of, by Lessee 339 248 Ejectment — P/iendJy, to Enable Person to Bring Suit. 335 246 Entry, Lessor by — Eent not Paid 338 247 Exceptions in 353 252 Exceptions in 354 252 Exception of Bnilding 352 251 Exceptions in — C'ircns, to See go by, from Balcony.... 354 252 Extrahazardous Covenant 304 238 Farming 309 238 Pire — ^Loss by, Covenant 357 254 Friendly Lease for One Year 333 245 Friendly — Relieve Neighbor 334 246 Groods — Sale, Conditional, and Lease from 355 252 Goods — Sale, Conditional, and Lease from 356 253 Habendum Clause for Lives 348 251 Habendum Clause for Lives 349 251 Habendum Clause for Lives and Years 337 247 Holding Over 307 237 Holding Over 308 237 Holding Over Covenant 322 243 House — Ironclad Covenant of 310 239 Improve, Lessee not to 320 242 Ironclad Covenant — House 310 239 Lease, Common 305 236 Lease, Common 306 236 Lease of Tenement 304 235 Lessee, Assign, not to 344 249 Lessee, Build to 328 244 Lessee, Burn Straw, not to 326 243 Lessee Covenants that Noxious Trades will not be Car- ried on 342 249 Lessee— Death of. Voids Lease 340 248 Lessee may Determine on Notice 339 248 Lessee to Inhabit Premises 343 249 Lessee to Insure at His Own Expense 330 244 Lessee, Lop Trees, not to 327 244 Lessee to P*urcha3e Premises 320 242 Lessee Shall Expend Sum Stated for Repairs 346 250 New Forms — 66 1042 INDEX LEASE — Contrnned. No. Page. Lessor may Determine on Notice 388 248 Lessor may Enter — Ironclad 314 240 Lessor may Enter and Make Inventory 331 245 Lessor, Will Sell Premises to Lessee 341 249 Letting House for One Year — Friendly 333 245 Life — Reddendum Clause for 350 251 Lives — Habendum Clause for 348 251 Lives — Habendum Clause for 349 251 Materials for Repairs — by Lessor 325 243 Memoranda of Renting, Friendly 334 246 Mining Claim of 358 254 Notice — Application to be Restored to Premises 362 257 Notice — Change of Terms of 365 258 Notice to Intended Purchaser of Tenant's Interest 369 259 Notice to Pay Rent or Quit 364 257 Notice to Perform Covenants 363 257 Notice to Quit 360 256 Notice of Quitting — Tenant 361 256 Notice, Tenancy Terminated 366 258 Notice, Tenancy Terminated 367 259 Noxious Trades, not to be Carried on 342 249 Offensive Trades, not to Carry on 329 244 Option — Lessor may Determine Lease 318 242 Possession to Deliver 317 242 Possession Surrender or Pay Rent 364 257 Premises to be Inhabited 343 249 Quiet Enjoyment 315 241 Quit, Notice to 360 256 Reddendum Clause for Life 350 251 Re-entry Covenant 311 239 Re-entry, Landlord may — Ironclad Covenant 311 239 Removal of 351 251 Rent not Paid, Lessor may Enter 338 247 Repair — Lessee Covenants to 332 245 Repairs — Lessor Finding Materials 325 243 Repairs and Taxes Deducted from Rent 347 250 Restored to Possession — Notice of Application to be... 362 257 Road Excepted 353 252 Schools or "Workhouse — Not to Use as 345 250 Share, Forming on 309 238 Surrender of 359 256 Surrender Possession or Pay Rent 364 257 Taxes — Covenant as to 323 243 Taxes Deducted from Rent 347 250 Tenancy Acknowledged 368 259 INDEX. . 104.1 LEASE— Oon Hut] cd. No. Page, Tenement, Lease of 304 235 Tenendum Clause for Years and Lives 337 247 Terminated by Death of Lessee 340 248 Terminating Tenancy, Notice 366 258 Terminating Tenancy, Notice 367 259 Timber — Exception of 324 243 Trades, Noxious, not to be Carried on 342 249 Trees, Lessee not to Lop 327 244 Underlet — Covenant not to 307 236 Underlet — Lessee not to 321 242 Waste — Lessor may Enter for 338 247 Way Excepted 353 252 Work on Schoolhonse — Not to be Used as 345 250 larfTTEES OF ADMINISTEATION. See Affidavit; Bond; Notice; Order; Petition. IiETTEES TESTAMENTARY AIH) OF ADMINISTRA- TION. See Affidavit; Bond; Citation; Notice; Or- der; Petition. Letters, Administration of. General 12S0 741 Letters, Administration of, Special 1281 742 Letters, Administration, Will Annexed — Executor Dy- ing After Qualifying 1278 740 Letters, Administration, Will Annexed, not Appointing Executor 1279 741 Letters Testamentary 1277 739 GENERAL NOTE: Administrator Suspended — Special Issued — 742 Death of Administrator — Special Granted — 742 Letters Must Conform Substantially to Statute.,.. — 740 Letters With Will Annexed — 740 Number of Administrators, any may be Appointed — 740 Public Administrator may Obtain, When — 742 Qualifications of Administrator, With the Will An- nexed — 740 Removal of Administrator — Special Granted — 742 Special Administrator, When Granted — 742 Special, Issued When There is Delay in Granting Regular — 742 Special, When General are Irregular — 742 "Substantially, " Meaning of — 740 * ' Succession, ' ' Meaning of — 740 "Will Annexed" — Letters of Administration With — 740 UEN. Affidavit — Attachment Lien upon Logs and Timber.... 586 275 Animal Sold to Satisfy 387 275 Architects ' Lien— Notice 378 272 Attorney at Law 's— Notice of 382 273 1(V44 INDEX. IJEN— Continned. No. Pa^. Contractor's 373 269 Disputed Claim — Attaehmeiit 385 274 Laborer's 372 269 Laborer 's Attachment, Notice of 384 274 Logs and Timber Upon — Affidavit 386 275 Materialman's 370 259 Materialnmn 's 371 268 Notice, Agreement to Furnish Material to Contractor of 375 271 Notice — Assignee, to, of Attorney at Law's — Lien 382 270 Notice — Assignee of Servants ' 383 274 Notice — Completion of Work 381 273 Notice — Laborer's to Officer Holding Attachment 384 274 Notice to Officer That Claim is Disputed 385 274 Notice — Owner, by — Not Eesponsible for Improvements 379 272 Notice Owner by — Not Responsible for Improvements. . 380 272 Notice — Propagating 388 386 Notice — Reputed Owner to of Architect 's 378 272 Notice — Reputed Owner of Laborer's, to 377 271 Notice — Reputed Owner of Materials Purnished Con- tractor, to 376 271 Notice — Sale of Animal, of, to Satisfy 387 275 Owner not Responsible 379 272 Owner not Responsible 380 272 Propagating Animals 388 275 Reputed Owner — Notice — Materials Furnished Con- tractor , 375 271 Reputed Owner — Notice to of Materials Furnished.... 376 271 Reputed Owner — Notice — Laborer 's 377 271 Servants '—Notice of 383 274 Subcontractor's 374 370 Works Completed — Notice of 381 273 GENERAL NOTE: Abandoned Contract — 265 Acquiescence Presumed in Absence of Notice.... — 266 Agency Under Employer — 262 Agent of Corporation and Notice of Labor, etc.... — 267 Alteration of a Mine — 263 Amended Notice of — Not Allowed — Not Even of Description of Property Subject to 265, 266 Assignment by Contractor of Money Due — 265 Attachment by One Claimant of Many — 275 Attorney at Law (Under Salary) and Lien — 267 ' ' At Usual Rate, ' ' Meaning of — 265 Bond — Contractor 'a - — 267 Boxes in Which Materials Used Were Packed, aa.. — 262 Burdens Borne by Truthful Owners ».... — 265 Claima PHled When, no Excuse for not — 265 INDEX. 1045 IJEN__<3-RNE-RAL NOTE — Continned. No. Page. Class Legislation -"'^ Common-law Bond of Contractor — 267 Completion Notice Prima Facie True — -fi'> Conditions of Contract — 264 ConspieuoQS Place — Notice not in — 2G7 Constructing a Mine — 263 Construction of ' ' Payment " — 264 Construction of Statute — Liberal — 264 Contract Abandoned 263 Contract Price — 264 Contracts Recorded When — 261 Contractor 's Bond 267 Contractor — Money Assigned by Before Due — 26u Cooking for Laborers 261 Corporation's Knowledge of Work on Its Property — 267 Description, Owner 's, etc., as to 263 Description— Property Subject— Amended Notice, of 265, 266 Destructive Work — Mining 263 Director of Corporation and Corporate Knowledge — 267 "Drifting in a Tunnel" — 263 Employment, Termination of Notice as to — 26d Error in Notice of — 265 Evidence — Corporation 's Knowledge of — -67 Explosion, Powder, as a ^^^ Expressions— Judicial Notice of — ^»- Pacts not Correctly Stated, Lien Lost 265, 26b Fixed Price of Materials — -'^* Flash of Powder, as a — -^f Garnishment — Money Due Contractor, of — 26d Gibbs vs. Tally and Common-law Bonds — 267 Gold — Extracting from Mine — 263 Improvement — Mine, of 263 Inconveniences of Truthful Men 265 Judgment and Other Liens Prior to Work Com- menced 266 Judicial Notice Taken of " Chutes." "Cross-cuts," "Inclines," "Stopes," "Shifts," "Tunnels," "Uprises" — Mines in — 262 Knowledge — Claimant, as to Ownership, of — 262 Knowledge — Owner, as to Work, of — 267 Knowledge — Owner, of Tenant's Intentions, by.. — 267 Knowledge — President, of Corporation, of — 267 Laborers Actually Doing Work — 262 Laborers Under a Contract of Builder — 262 Landlord Must Improve, When — 267 Landlord's Notice of Improvements Presumed.... — 267 jjgaag Tenant may impruve— if He Docs Landlord Liable, Unless — 267 Legislation by Classes - - 275 Lost if Notice of is Untrue — 265 Market Price — 264 Market Rates — 264 Market Value — *64 Materials — Fixed Price of — 264 Material Must be Furnished to be Used in the Par- ticular Building Where Used — 262 Materialman Under Contractor — 262 1046 LNDEX. LIEN— OKXE'RAL NOTE— Continned. No. Paf?e. iNreclianies' Liens Depend upon Statnte — 261 Mine — Construction of -^"^ Mine — Construction, Alteration, Improvement or Eepair of — ^^-^ Mine — Extracting Gold from — 263 Mistake— Date of Contract, in (Two Years) Upheld — 235 Mistake in Notice of — 265 Money Lender for Loan to Contractor for Purchase of Materials — 26- Mortgagcs Prior to Material Furnished — 266 Mortgages, Prior to Work Commenced — 266 Kame of Owner When Lien is Filed — 264 Notice — Amended — Not 265, 266 Notice — Compliance of — 265 Notice — Each must be Sufficient — 265 Notice — Error in, of — 265 Notice — Judicial of Words — 262 Notice — Lien of — 264 Notice — Lien and Proof of — Variance — 264 Notice — Mistake in, of — 265 Notice — Owner, Material to — 265 Notice — Owner not Responsible — 266 Notice — Posted, not, in "Some Conspicuous Place" — 267 Notice Presumed — 267 Notice — Responsible, not, by Vendee in Posses- sion — 266 Notice — Several, not. Read Together as One — 265 Notice — Statements in not True — Lien Lost 265,266 Notice — When to File, of — 265 Owner's Knowledge of Tenant's Intentions — 267 Owner — Knowledge of as to V/ork — 266 Owner, Possession of — 267 Owner or Reputed Owner — 263 Owner — Responsible, not — Notice — 266 Owner, Truthful, Bear Burdens of the Untruthful.. — 265 Ownership, Presumption of — 262 Patterns Used in the Manufacture of Parts of Structure — 262 "Payment," Construed — 264 Permission — Owner to Improve, of — 267 Posting Notice of not Responsible — 267 Possession of Vendee as to Lien — 266 Powder Used but Vanishing in a Plash — 262 President of Corporation — His Knowledge the Cor- poration's — 267 Presumed, Notice of — 267 Presumption of Ownership — 262 Prima Facie Evidence of Corporation's Knowledge — 267 Prima Facie Evidence of Ownership — 262 Rates Reasonable — 264 "Rates," Usual, Meaning of — 265 Reasonable, Market Rates — 264 Reasonable Rates — 264 Reasonable Worth of Materials — 264 Recorded Liens — Not Mechanics ' — 266 Recording of Contracts — 261 Regular Market Price — 264 Repair of a Mine — 26^ INDEX. 1047 LIEN— OKNIOT^AT. NOTF — Continaod. No. Pag«. Reputed Owner — 263 Reservation of Twenty-five Per Centum — 2G1 Responsible Notice — 266 Responsible, not. Notice by Vendee in Possession.. — 266 "Running a Tnnnel " — 263 Salaries of "Any Other Person" (an Attorney at Law Under Salary has Lien) — 279 Services Rendered by Any Person and Lien — 267 Statement of Facts not True Lien Lost 26.'j, 266 Statute — Liberal Construction — 264 Statute must be Strictly Complied with — 261 Statute must be Substantially Observed — 261 Street Work '. — 262 Strict Compliance with Statute — 261 Substantial Compliance is Sufficient — 261 Substantial Observance of Statute Necessary — 261 Teamster Hauling^ Brick — 262 Teamsters Hauling Material — 262 Terms — Time Given, etc — 264 Variance — Allegation and Proof of Price Between. — 264 Variances Fatal — 264 Variance, Notice of and Proof of — 264 Verification by Attorney — 265 Verification — "The Claim is True" no Better than "The Facts Stated Therein are True" — 266 Verification of Completion, Notice — 265 Verification — "The Facts Therein Stated are True ' ' Good — 265 Verification Months Before Filing Claim — 265 Vendee in Possession — Notice, Must Give — 266 Vendor of Materials to Materialman — 262 Wages and Salaries of Miners, Mechanics, Servants, Clerks and Laborers — 273 Wages and Salaries of "Any Other Person" — 267 ' ' What it is Worth, ' ' Meaning of — 265 Who may Have — 261 Words, .Tudieial Notice of — 262 Words, Meaning of 262-265 Work Commenced and Notice of by Owner — 266 Work — Knowledge of Owner asto — 266 Work on Street — 262 Writing — Contracts to be in — 261 LOST PROPERTY. Afl^davit— Finder 1282 742 Appraisement of 1593 963 MANDAMUS. See Order; Petition; Writ. Alternative 1283 743 Peremptory 1284 743 GENERAL NOTE: Afiidavit to Obtain 743 Alternative, Writ of 744 Application for — 744 Courts may Issue — What — 74 » Peremptory Wri t of — 7-j4 W^rit may Issue — When — 7)4 .Writ, Purposes of — 744 1048 INDEX MAEEIAGE. No. Page. Marriage Ceremony 390 277 Marriage License 389 276 MnSTTNG, Adverse Claim and Protest 414 293 Affidavit of Improvements made 401 287 Affidavit — Nonmineral 406 289 Agreement of Publisher 403 287 Application for Patent 398 283 Application for Survey U. S 394 280 Application for Survey U. S 396 282 Certificate — Identity of Claim 397 282 Certificate — Register's, of, Posting 412 292 Certificate — Suit not Pending 413 292 Estimate of Surveyor-general 395 281 Pees and Charges, Statement of 411 291 Forfeiture, Notice of 415 296 Improvements — Affidavit of Making 401 287 Known Veins not Existing 407 290 Labor, Proof of 402 287 Location of Placer Claim 391 278 Mineral — Non, Affidavit 406 289 Notice of Application for Patent 399 284 Notice of Forfeiture 415 296 Notice of Location 391 278 Notice of Location of Quartz Claim 392 278 Notice of Location of Water Eight 393 279 Ownership, Proof of 405 288 Patent, Application for 398 283 Patent, Notice of Application for 399 284 Placer Claim — Notice of Location 391 278 Possession — Proof of 405 288 Posting Notice and Diagram — Proof of 400 285 Power of Attorney 404 288 Proof of Ownership 405 288 Proof of Labor 402 287 Proof, Liens — That None Exist 407 290 Proof — Plat and Notice Eemained Posted 410 291 Proof of Possession 405 288 Proof of Posting Notice and Diagram 400 285 Protest and Adverse Claim 414 293 Publisher — Agreement of 403 287 Quartz Claim — Notice of Location of 392 278 Eegister 'i Certificate of Posting 412 292 INDEX. lO-l^ MINING — Contimied. No. Page. Beply to Application for Survey 396 282 Statement of Pees and Charges 411 241 Suit Pending — Certificate of None 41.3 292 Survey, Application for 394 280 Surveyor General, Estimate of 39.5 28 1 Water Right — Notice of Location 391 279 942 299 301 MINOE. Se« Complaint; Guardian; Notice; Order; Peti- tion. Consent by, to Probate Will 1571 MORTGAGE. Soe Acknowledgment; Aflidavit; Notice; Order; Petition; Trust Deed. Acknowledgment — Chattel Mortgage 421 302 Affidavit — Chattel Mortgage to 420 302 Chattel Mortgages 416 297 Chattel Mortgages 417 299 Chattel Mortgages 418 Chattel Mortgages 419 Church by — Notice of Application to 431 313 Code Form— Land 422 302 Corporation by Land 427 310 Decedent, Estate of by 429 312 Deed as Mortgage 430 313 Estate of Decedent by 429 .312 Land of 423 305 Land of 424 305 Land of 425 307 Land of 426 308 Land of 428 312 Order— Church to 432 314 GENERAL NOTE: Administrator by — 312 Advances — Further — 304 Affidavit to Chattel Mortgage — 297 Agreement to Give — 303 Assi'^uments, Absolute as Chattel — 298 Chattel — Acknowledgment of — 297 Chattel Mortgages — 298 Chattel— Void When — 297 Collateral Security may be — 298 Condition Broken — Effect of — 303 Contract of — Form not Material — 303 Covenants in Estate 'a — 313 Creditors, Effect on — 297 Crop and Possession — Chattel — 298 Debt — Canceled Debt Paid — Deed Absolute — 303 Debt not Canceled, Debt not Paid — Deed a Mort- gage 303 Debt Secured by — Identification of — 303 1050 INDEX. MOETGAGE — GENERAL NOTE— Continued. No. Page. Deed Absolute on Face may be — 303 Deed as — Defeasance — Acknowledged and Recorded — 313 Deed Executed and Delivered — 303 Deed and Mortgage — Difference Between Explained — 303 Defeasance — Acknowledgment and Recording of.. — 313 Description in 303, 304 Description in by Reference to Patent — 304 Estate of Deceased Person's Covenants in — 313 Estate of Decedent by — 312 Execution — Form of — 303 Executed How ' — 304 Pacts Outside of Writing Considered — 303 False Statement of Occupation in Chattel — 299 False Statement of Residence in Chattel — 299 Fixtures Attached to Leased Property — 304 Further Advances — 304 How Executed — 304 Identification of Property — 304 Immediate Possession — Chattel — 29S Increase of Animal Mortgaged — Chattel — 29S Increase of Cattle After Mortgage — Chattel — 298 "Increase," Meaning of— "Chattel" — 298 Increase of Property — Chattel — 298 Instruments, Several, in Writing, Read Together as — 303 Land in Two or More Counties — 297 Land of— When Void — 297 Lease by Mortgagor — 304 Legal Title to Property Described in Chattel — 293 Liberal Construction the Rule — . 298 Loans on Collateral, may be — 298 Mistakes in Description — 304 Mortgagee — Inquiries by — 297 Mortgagee — Must Make Inquiry — 297 Mortgagee and Party in Possession of Land — 297 Mortgagee 's Possession — Chattel — 298 Mortgagee's Right to Increase of Cattle — 298 Notice of— Effect on — 297 Oceupation of Parties to Chattel — 299 Party in Possession, as to — 297 Payment of Renewal of Note Secured by, is not Payment — 304 Personal Property and Land in One Mortgage.... — 298 Personal Property — When Void — 297 Possession, Change of — 298 Promissory Note, Bond and Other Evidence of Debt not Necessary — 303 Property — Identification of — 304 Real and Personal Property in — 304 Real Estate and Personal Property in One Mort- gage — 298 Reformation of, by Judicial Process — 30 i Reference to Patent for Description — 304 Residence of Parties to Chattel — 299 Right of Redemption — Chattel — 298 Statute of Limitations, as to Advances — 304 Subsequently Acquired Property — 3{>4 . Title to Property Described in Chattel — 298 Transfer of Stock to Secure Loan ia — 298 INDEX. 10r,l MORTGAGE- nKNERMj NOTE — Continuf d. No. Pago. Unrecorded Effect of — 297 Void, When — 297 What >s — 303 NEGOTIABLE INSTEUMENTS. Sec Bills; Boml.s; Prom- issory Notes; Protest. Protest of for Nonpayment 479 337 Protest of for Nonpayment 480 338 Protest of for Nonpayment 4'<1 3.39 Protest of for Nonpayment 4S2 339 Protest of for Nonpayment 483 340 Protest of for Nonpayment 484 341 Protest of for Nonpayment 485 341 NOTICE. See Aflidavit; Lien; Mining; Order; Petition; Protest. Account, Settlement of 1 201 746 Adverse Claim — Plaintiff to 12S.5 744 Adverse Claim — Plaintiff to 120S 710 Adverse Party, Award to be Served on, of Filing 71 52 Agreement to Furnish Material to Contractor of 375 271 Annual Meeting, of oj^ jg^ Annual Meeting, Election of Directors, of 21S 103 Annual Meeting 219 164 Annual Meeting 220 164 Appeal, of 1293 747 Application, Appraisers to Appraise Value Homestead. . 272 223 Application for Change of Name, of 212 163 Application for Change of Name, of 213 163 Application — Discharge from Imprisonment for 1320 760 Application, Disincoqwrate to 1319 760 Application to Sell Homestead of Insane Person, of. ... 283 228 Application of Husband of Insane Vv'^ife to Sell Home- stead 282 227 Application, Letters, for 1289 745 Application — Mortgage by Church 431 313 Application to be Restored to Premises, of 362 257 Application, Society to Effect Loan by Mortgage, of... 1292 747 Application, United States Patent for— Form H, of 399 284 Application, Vacate Arrest 1207 710 Application for Voluntary Dissolution, Clerk by 204 158 Arbitrators of Their Appointment, to 58 52 Architect's Lien, Reputed Owner of, to 378 272 Arrest, Plaintiff 1200 708 ^ -Di ■ 4rff r.f 1326 763 Arrest, Plaintiff, or Aesessment, Corporation "-^ ^'^ 1052 INDEX NOTICE— Continned. No. Page. Assessment, Time and Place Where Made — Inheritance Tax 1330 765 Assignee, Debtor of. Election — Sent by Mail, of 105 91 Assignee, Lien of Attorney, of 382 273 Assignee of Lien of Servant 383 274 Assignment, Creditors, to 106 92 Attachment— Sheriff 's '. 1294 748 Attachment of Stocks— Sheriff 's 1297 749 Award, Motion to Correct, of 74 72 Case has been Transferred 1287 745 Case Set for Trial 1288 745 Change of Place of Business 209 160 Church to Mortgage 431 313 Claim Disputed 1314 758 Claim Disputed 1199 707 Claim Disputed by Creditor 1318 760 Claim Disputed by Creditor 1197 707 Claim Disputed, Defendant by 1315 759 Claim Disputed, Defendant by 1198 707 Claim Laborers of, Creditor to 13 17 759 Claim of Laborer, Officer to 1316 759 Claim of Laborer, Officer to 1195 706 Claim, Location of Placer, of 391 278 Claim, Location of Quartz, of 392 278 Completion, Work, of 381 273 Contractor to Owner 375 271 Creditor, Claim Disputed by 1318 760 Creditor, Claim Disputed by 1197 707 Creditor, Laborer 's Claim of, to 1317 7;)9 Creditor, Laborer's Claim of, to 1196 706 Creditors, Assignment, to 1^6 ^'^ Creditors, to 1296 7*9 Creditors to — Affidavit of Publication of 620 426 Death, l^laintiff, of 1298 749 Decision of 12^6 744 Deeiaion of 12^J3 709 Defendant, Claim Disputed by 1315 759 Defendant, Claim Disputed by 1198 707 Defendant Excepts to Sufficiency of Sureties 12U4 709 Defendant— His Sureties Must Justify 1205 709 Delinquent Sale Notice 225 165 Deposition, Taking of 1322 761 Deposition, Taking of 1323 762 Deposition to Take 1325 763 Directors ' Meeting 222 165 INDEX. lOrul NOTICE— ronHnned. No. Page. Disi'liarge, Imprisonment, Application for 1320 760 Disincorporate, Application to 1319 760 Ejectment, Pendency of Action of 1303 752 Election, Directors of — Annual Meeting 218 163 Election of Assignee of Debtor Sent by Mail 105 91 Exception, Sufficiency of Sureties to 1209 750 Executor, Suspension of 1328 764 Foreclosure Lien of — Sheriff's Sale 1312 757 Foreclosure Mortgage of — Sheriff's Sale 1311 756 Foreclosure — Pendency of Action 1304 752 Guarantors, Surety — Defend Action on Bond Signed by Surety and Guarantor, to 1327 764 Hearing, of 59 53 Imprisonment, Application for Discharge from 1320 760 Improvements, Owner not Responsible 379 272 Improvements, Owner not Responsible 380 272 Inheritance Tax — Time and Place Where 1330 765 Inheritance Tax — Treasurer — District Attorney 1331 765 Inheritance Tax — Trust Co. to Couuty Treasurer 1332 766 Intended Purchaser — Person in Posstssiou Claims Inter- est, to 369 257 Intention, New Trial, to Move for 1295 748 Intention, Sole Trader to Become 1321 761 Justification of Sureties 1300 750 Land, Sale of— Motion to Set Aside 1301 751 Landlord— To Suit 360 256 Lease, Covenants of, to Perform 363 257 Lease, Terms of. Change of 365 258 Letters, Application for 1289 745 Lis Pendens 1304 752 Lis Pendens 1305 752 Loan, Application of Society to Effect, by Mortgage.. 1292 747 Location of Placer Claim 391 278 Location of Quartz Claim 392 278 Lien of Attorney, Assignee to 382 273 Lien, Laborer's, Reputed Owner to 377 271 Lien, Notice to Officer of 384 274 Materials of — Puiuished Contractor, Reputed Owner, to 376 271 Meeting, Annual 217 103 Meeting, Annual 218 163 Meeting, Annual 219 164 Meeting, Annual 220 164 Meeting, Directors ' 222 165 Meeting, Special, of Stockholders 221 164 Mortgage, Application of Society to Effect Loan by. ... 1202 747 1054 INDEX. NOTICE— Continued. No. Page. Motion of 1302 751 Motion to Correct Award ^4 72 New Trial, Intention to Move for 1295 748 Oecapant— Real Estate, to 1209 711 Officer to — Claim of Laborer 1316 759 Officer to — Claim of Laborer 1195 706 Officer to Claim, Laborer's, Creditor Dispxited by 1197 707 Officer to — Claim is Disputed 385 274 Officer to — Claim, Laborer's Defendant Disputed by.. 1198 707 Owner that He Will not be Responsible for Improve- ments, by 379 272 Pay Rent or Surrender Possession, to 364 257 Pendency of Action, Ejectment of 1303 752 Pendency of Action, Foreclosure of 1304 752 Pendency of Action, Quiet Title 1305 753 Personal Property, Sale of 1307 754 Personal Property, Sheriff 's Sale of 1313 758 Person in Possession Claims Interest — Intended Pur- chaser to 369 257 Plaintiff to, Adverse Claim 1285 744 Plaintiff to, Adverse Claim 1208 710 Plaintiff, Arrest of 1326 763 Plaintiff. Arrest of 1200 708 Plaintiff, Death of 1298 749 Plaintiff, Justification— Sureties 1206 710 Plaintiff, Substitution of 1310 756 Plaintiff, Substitution, Party Defendant of 1201 708 Posting of— Affidavit 621 427 Posting of— Affidavit 622 428 Postponement, Sale, of 1329 765 Premises, of Quitting— By Tenant 361 256 Quiet Title, Pendency of Action to 1305 753 Quit by the Landlord, to 360 256 Quitting Premises by Tenant 361 256 Real Estate, Sale of. Auction 1309 755 Real Estate, Sale of Postponed 1306 753 Reputed Owner of Architect 's Lien, to 378 272 Reputed Owner of Laborer 's Lien, to 377 271 Reputed Owner of Materials Furnished to Contractor, to 376 271 Sale, Animal of — Lien 387 275 Sale. Day for Hearing Return of 1308 755 Sale of Land —Motion to Set Aside 1301 751 Sale of Personal Property 1307 754 INDEX. 1055 KOTICE— rontTTinr(1. No. Page. Sale, Postponemeut of 1329 765 Sale of Real Estato— Auction U09 7r,5 Sale of Real Estate Postponed 1:^0(5 753 Sale — Trustees 263 215 Settlement, Acconnt, of 1201 740 Sok Trader, Intention to Become 1321 761 Special Meeting of the Stockholders, of 221 164 Stocks, Attachment of, Sherill 's 1207 749 Substitution, Plaintiff's, of i:nO 7.'i6 Substitution, Plaintiff's, of 12nl 703 799 Creditors— Notice to Established 1024 611 Creditor 's Notice — Publication of 1395 799 I>ay — Set — Application for Letters of Guardianship... 1408 806 Debtor, Examined to be 1372 786 Sd!>tor, Defendant of — Examination 1215 713 New Forms — 67 796 793 1058 INDEX OEDER — Continued. Fo. Page. Debtor of Judgment Debtor to be Examined 1.374 787 Debtor, Property of, to be Applied 1373 787 Debts, Payment of, for 1398 800 Denying Petition for Order Directing Administrator to Convey Land 1347 773 Deposition, Commission to Take 137.5 788 Deposition, Commission to Take 1376 788 Deposition of Witness to Will, to Take 1594 963 Deposits, Unclaimed to Eecover, Citation to Bank, Di- recting 1382 792 Disincorporation — Notice to be Given 1381 791 Distribution, Partial 1377 789 Distribution, Partial 1378 789 Distribution, Petition for, on 1379 790 Division of Homestead Land, Directing 279 22G Entry of Judgment on Award, Staying 75 72 Estate Community Property, Declaring 1370 785 Estate, Wasted — Administrator Suspended to Deter- mine 1367 783 Examination — Debtor of Defendant 1215 713 Examinatiou of Party 1214 713 Executor Appointing in Place of Executor Removed — Contempt 1394 799 Executor to File Statement 1361 780 Executor to Invest Moneys in His Bonds 1343 772 Executor to Invest Moneys, Publication of Notice of Application for Order Directing 1344 772 Executor, Notice of Proceedings to Eemoval of to be Given by Publication and Mail 1357 773 Executor to Pay Legatee Share of Estate 1342 771 Executor, Removing for Neglecting to Give Notice to Creditors 1362 781 Executor— Eight Forfeited 1355 777 Executor to Show Cause Why Letters Should not be Revoked 1360 780 Executor, Suspended, Notice to be Given to 1359 779 Executor, Suspending 1358 779 Executor, ' ' Without Bond ' ' to File a Bond 1350 775 Executors, One of Two Absent from State, Establishing 1353 776 Family Allowance — Property for Use 1401 802 Family— Estate Paid to It 1402 803 Family — Support Until Inventory Returned 1400 801 Further Notice Upon Settlement of Account 1339 769 Guardian, Application for Appointment — Notice of.... 1403 803 Guau^ian 's Application — Sale of Real Estate 1434 820 INDEX 1059 ORDER — Con tinned. No. Page. Guardian Appointf^d 140.J 804 Guardian Appointed — Minor 1407 805 Guardian, Incompetent Person 1409 807 Guardian, Letters of Administration to 1352 776 Guardian, Nonresident, Lease to Remove Ward's Prop- erty 1410 807 Habeas Corpus, Granting 1411 808 Homestead, Directing to be Sold — Sur])lu8 Applied.... 278 225 Homestead, Insane Wife's, Permitting Sale 285 228 Homestead Land, Division of. Directing 279 276 Homestead — Setting Apart — Surplus Land 280 226 Inheritance Tax — Appraiser Appointing 1333 766 Inheritance Tax — Citation to Issue in 1383 793 Inheritance Tax — Values, Fixing 1458 833 Injunction 1413 809 Injunction for — to Issue 141 4 810 Insane Person — Arrest for ^ 1334 767 Inspection for 1415 810 Inspection for 1212 712 Intervention, Allowed 1416 Sll Intervention, Allowed 1213 712 Judgment on Award, Staying Entry of 75 72 Juror, Defaulting — Contempt 1385 794 Lease, Administrator to Execute 1349 774 Lease, Real Estate, Cause why not, to Show 1417 811 Letters of Administration to Guardian to Person En- titled 1352 776 Letters, Application and Contest for Heard Together.. 1351 775 Letters of Guardianship, Day for Hearing Application 1408 806 Letters Revoked 1356 778 Letters, Revoked, Executor to Show Cause why not.. 1360 780 Letters, Revoking, After Commitment for Contempt.. 1393 798 Life Estate Terminated 1418 811 Majority Report of Appraisers, Rejecting 303 234 Mines, Sale of. Cause to Show 1435 §21 Minor, Guardian Appointed — Cause Inserted at Minor's Requpat 1407 805 Minor, Sheriff to take from Custody 1406 805 Minor, Temporary Custody, Providing for 1404 804 Mortgage 1420 813 Mortgage — Application by Estate to 1419 812 Mortgage — Church to Give Xotice 4.32 314 Mortgage — Clause "A" 1421 813 Mortgage — aause"B" 1422 814 Name, Changing 216 1G3 1060 INDEX. ORDER— Continned. No. Pa^. Notice to Creditors, Executor Removed for Neglecting 1362 781 Notice to Creditors Established 1024 611 Notice to Creditors to be Published 1395 799 Notice, Publication of 202 157 Partial Distribution, for 1377 789 Partial Distribution, for 1378 789 Partition — Commissioner Appointed 1423 814 Partition, Notice of Application for 1424 815 Payment, Debts of, for 1398 800 Payment of Debt, Administrator — Without Creditor's Affidavit 1345 772 Permitting a Sale of Insane Wife's Homestead 285 228 Personal Property, Perishable, to Sell 1427 816 Personal Property, Sale 1426 815 Personal Property, Sale — Approving 1431 818 Personal Property, Sale of upon Petition for Sale of Realty 1428 816 Personal Property, Sale of— Time 1430 817 Petition — Administrator to Convey, Denying 1347 773 Petition for Distribution, on 1379 790 Property, Appraised, Administrator Neglecting — Cause for Nonremoval 1363 781 Property, Debtor of, to be Applied 1373 787 Property, Sale of all Belonging to Estate 1429 817 Publication, of Change of Name 214 163 Publication of Notice, of 202 157 Publication, Notice of Application for Order Directing Executor to Invest Moneys 1344 772 Publication, Summons, of 1446 827 Punishment, Contempt for, to Show Cause why not.... 1384 793 Real Estate, Lease of, to Show Cause why not 1417 811 Real Estate, Sale of 1437 821 Real Estate, Sale of. Administrator by 1438 823 Real Estate, Sale of — Cause to Show 1432 819 Real Estate, Sale of. Cause to Show 1433 819 Real Estate, Sale, Confirmed 1442 825 Real Estate, Sale of, Guardian 's Application 1434 820 Real Estate, Sale of — Guardian to Make 1439 823 Real Estate, Sale of— Hearing, Day Fixed 1440 824 Real instate, Sale — Vacated 1445 827 Real Estate, Sale of— Will by Authority of 1443 826 Real Estate, Sale of. Without Notice 1436 821 Eef eree — Account — Appointed to Settle 1340 770 Release Levy 1222 715 Report of Appraisers, Setting for Hearing 301 234 INDEX lOCl ORDER— ContinTied. No. Page. Report, Majority Appraisers of, Confirming 302 234 Rescinding Assessment 224 165 Resignation of Testamentary Trustee, Accepting 1425 ^15 Sale — Contract to Purchase Land, Confirming 1441 824 Sale— Mines of, Cause to Show 1435 821 Sale — Open Court, Made in, Confirming 1444 826 Sale— Perishable Personal Property 1427 816 Sale— Personal Property 1426 815 Sale — Personal Property, Approving 1431 818 Sale — Personal Property — Sale of upon Petition for Sale of Realty 1428 816 Sale— Personal Property, of— Time of 1430 817 Sale— Property, all, Belonging to Estate 1429 817 Sale— Real Estate, of 1437 821 Sale— Real Estate, of. Administrator by 1438 823 Sale— Real Estate, Authority of Will, by 1443 826 Sale — Real Estate — Cause to Show 1432 819 Sale— Real Estate — Cause to Show 1433 819 Sale— Real Estate— Confirmed 1442 825 Sale — Real Estate, of — Guardian 's Application 1434 820 Sale — Real Estate — Guardian to Make 1439 823 Sale — Real Estate, of — Hearing — Day Fixed 1440 824 Sale— Real Estate— Vacated 1445 827 Sale— Real Estate— Without Notice 1436 821 Service of Notice — Heirship Determined, Establishing. . 1412 809 Setting Apart Homestead and Permitting Execution Against Surplus Land 280 226 Sheriff, Minor to Take from Custody 1406 805 Statement, Executor to File 1361 780 Substitution of 1217 714 Summons — Posting by 1595 964 Summons, Publication of 1446 827 Sureties, Arrest by 1335 767 Surviving Partner, to Render Account, Directing 1338 769 Testamentary Trustee, Resignation of Accepting 1425 815 Time Extending 1447 828 Time Shortened 144S 829 To Show Cause why Award should not be Vacated and Staying the Entry of Judgment 77 72 Trustee (Under Will) Appointing 1436 833 Vacating an Award and Ordering a Rehearing 78 73 Values, Fixing — Inheritance Tax 14oS 833 "Will, Contest, Attorney to 1451 830 •Will — Witness — Deposition of to Take 1594 963 Will, Person Who Possesses to Produce 14.'2 830 1062 INDEX. OKDEB — Continued. No. Page. Will, to Probate, Admitted 1454 831 Will, to Probate, Admitted 1453 831 Will, Probate of, Revoked 1457 833 Will, to Produce 1450 829 GENERAL NOTE: Account Referred, for Settlement — Estates — 770 Account — Settlement Set for Hearing — 771 Administrator — Appointing — 784 Administrator to Show Cause why He Should not be Removed — Appraisement not Made — 781 Arrest — Action to Recover Money Embezzled, etc. — 768 Arrest — Action to Recover Personal Property — 768 Arrest — Contents of Affidavit — 768 Arrest — Civil Cases — Defendant Departing from State to Defraud — 768 Arrest — Debt Contracted Fraudulently — 768 Arrest — Disposal of Property to Defraud Creditors — 768 Arrest— Fraud for — 768 Attorney — Service on in Contempt Proceedings... — 794 Authority of Court Over Mortgages by Estate.... — 814 Bond to File by Executor — 7f 5 Bond on Partial Distribution, for — 771 Cause to Show why Person Should not be Pun- ished for Contempt — 794 Children to Take Entire Estate — 803 Citation, for — Administrator to Answer for Con- tempt — 797 Claim Approved Without Affidavit — 773 Contempt — Administrator Fails to Render Account. — 709 Contempt — Cause to Show in Defense of — 794 Contempt — Conviction of Appeal, as a General Rule the Judgment and Orders of Court are Final and Conclusive — 796 Contempt — Conviction of — Appeal Lies — I'M] Contempt — Conviction of — Appeal Will not Lie... — 796 Contempt — Conviction of — Appeal Lies When It Appears the Court Exceeded Its Jurisdiction — — 796 Contempt — Conviction of Appeal will not Lie Un- less the Case is Within a Certain Rule — 796 Contempt — Conviction of — Appeal Does not Lie in Any Case — 796 Contempt — Letters Revoked for Disobeying — 793 Creditors — Additional — Notice to, for — 800 Creditor 's Claim — Allowing Payment — 800 Creditor 's Claim — Barred When — 800 Creditor 's Claim — Must be Presented — 800 Creditor 's Claim — Notice not Given — 800 Creditors, Notice to, for — 799 Creditor Out of State — 800 Debtor to be Examined — 786 Debts, Sale to Pay — 818 Distribution — May be on Petition of Interested Person — 790 Distribution, Partial — 771 Distribution ajid Partition — 790 I^DEX 10C3 ORDEB — GP:NT:"RAL note — CoTitinupd. No. Page. Distribation — On Petition ot ExeeatoT, or Admin- istrator — 790 Establishing Pact that an Executor is Absent from the State — 776 Executor to Give Further Sernrity — 7S5 Executor to Pay Legatee His Share of Estate — 771 Executor to Show Cause why His Letters Should not be Revoked — 7S0 Extending Time — S28 Family Allowance — 8i)2 Forfeiting Executor's Right to Letters — 778 Furniture Allowed to Family — 802 Guardian of Minor Delivered from Temptation.... — 8u6 Guardian of Minor to have Letters — 77G Guardian's Sales — Reasons for to be Stated in.... — 824 Homestead to Family as Residence — 802 Incompetent Person 's — Estate may Mortgage Real Estate — 814 Injunction the Same Everywhere — 809 Insurance Clause in Mortgages by Estates — 814 Lease of Land by Estate — Service of Notice, for.. — 811 Lease to be Made — Estates — 77.'3 Legacies — Sale to Procure Funds to Pay — 81 S Minor, Temporary Custody of — 804 Money Allowed for Support of Family — 802 Mortgage by Estate — Clause "A" — 81."^ Mortgage by Estate — Clause "B" — 814 Mortgage — By Estate — Power of Court in — 814 Mortgage by Estate — Service of Notice of Applica- tion to — 813 Mortgage of Real Estate by Estate — 812 Notice to be Given of Proceedings to Remove Executor — 773 Notice to be Given of Proceedings to Suspend Ex- ecutor — 779 Partition and Distribution — 790 Partial Payment of Debts — 801 Payment of Debts, for — 800 Production of Incompetent Person Before the Court — 807 Removing Executor — 777 Removing Executor for Neglecting to Give Notice to Creditors — 781 Residence — Homestead Allowed for — 8^2 Return of Guardian 's Sale — S'H Revoking Letters and Appointing Other Adminis- trator 798, 799 Sales Confirmed — 82.5 Sale of Entire Personal Property of Estate — SIS Sale of Personal l*ropcrty — Time of — 818 Sale of Property to Pay Debts — S 1 6 Sale of Real Estate — Cause to Show — M9 Sale of Real Estate by Guardiau — S:2() Sale of Real Estate — How Conducted Under — S22 Service of on Corporation — Contempt Proceedings — 7'.'4 Service of Notice to Sell Real Estate — S20 J Sheriff to Take Minor into Custody — 805 1064 INDEX. OEDEE — GENERAL NOTE — Contimied. No, Page. Special Administrator Appointing — 782 Surviving Partner to Bender Account — 769 Suspending Executor — 779 Suspending Executor Until Hearing of Application for Further Security — 78i Time Extended — 828 Ward's Property Removed from State — 808 Widow to Take Entire Estate, When — 803 Widow and Children to Take Entire Estate — 803 Will to Contest, by Attorney — 830 Will, to Produce — 830 Wills to be Produced — 831 OEDZNANCES. See Complaints and Pleadings in Minor Courts; Justice's Court. PATENT. See Assignment; Oath; Petition, Administrator, Petitions for 436 315 Application for Reissue — Oath to 445 318 Assignee — By Inventor for 435 315 Assignment of Interest in Letters Patent 450 320 Assignment of Letters Patent 449 320 Assignment of Letters Patent 455 332 Assignment of Letters Patent 456 332 Assignment — Territorial Eight 451 320 Assignment of Invention Before Patent 448 319 Caveat 446 319 Composition of Matter — Specification for 443 317 Design — Petition for Letters for 439 316 Design — Specification for 444 318 Executor Petitions for 437 315 Invention Assigned Before Patent 448 319 Letters Patent — Assignment of 449 320 Letters Patent — Assignment of 455 332 Letters Patent — Assignment of 456 332 Letters Patent — x\ssignment of Interest in 450 320 License — Not Exclusive 453 321 License— Shop Right 452 320 Machine — Specifications for 441 316 Mining Ground for 398 283 Oath— Applicant for Reissue 445 318 Petition by Administrator for 436 315 Petition, Executor, by 43r 315 Petition for Letters for Design 439 316 Petition for Reissue 438 316 Petition — Inventor for Assignee 435 315 Petition — Joint Inventors, by 434 315 Petition — Sole Inventor, by 433 315 INDEX 1065 PAIITNT — Continued. No. Tage. Power of Attorney, for 440 318 Process — Specifications for 442 317 Beissue — Petition for 438 316 Royalty — License with 453 321 Shop Ripht — License 452 320 Specification 447 319 Specification — Composition of Matter 443 317 Specification for Design 444 3ig Specification for Machine 441 316 Specification for Process 442 317 Territorial Grant — Assignee 451 320 Trademark, Transfer of 454 321 PEBSONAL PEOPEETY, Sale of 1527 906 •ETITION. See Afl5davit; Notice; Order; Patent; Writ. Administration of, Continuation, for 1508 884 Administration — Letters of — For 1466 840 Administrator to Account, Court may Order 1499 877 Administrator, by 4.'!6 315 Administrator, Appointment of Special 1473 845 Administrator to Convey Land — Order — Objections to. . 1497 876 Administrator to Give Further Security 1469 843 Administrator to Give New Bond — Sureties Eemovcd from State 1468 842 Administrator — Land to Convey 1596 964 Administrator — Personal Property to Transfer 1597 965 Administrator to Sell Stock — Mining Company 1484 859 Administrator — Will Annexed — Former Executor to Ac- count 1500 878 Appraiser, Appointment of — Inheritance Tax 1520 895 Assignee, Heir at Law of — Distribution of Assignor's Share for 1506 Attorney, District, Citation for — Inheritance Tax 1519 894 Attorney, Treasurer 's, of — Inheritance Tax 1521 895 Bond— New— Order, for 1470 844 Church, Mortgage, to 1493 871 Citation, Complaint vs. Bank, Administrator, by 1476 847 Citation, for — Creditor, by — Administrator to Account 1498 877 Citation — District Attorney, by — Inheritance Tax.... 1519 894 Citation to Show Cause Why Bank Should not Pay Ad- ministrator 1476 847 Contest of Petition to Probate Will 1570 942 Continuation of Administration, for 1508 884 Corporation, Dissolution of 1518 89.'l Court to Declare Eights of All Persons to Estate.... 1505 881 Court, may Order Administrator to Account 1499 877 Creditor, Citation for, by — Administrator to Account. 1498 877 o 1066 INDEX- PETITION— Continned. No. Pa?e. De€re€ — Homestead Setting Apart 1-179 851 Decree — Homestead Vested in Surviving Wife 1509 8S5 Dissolution, Corporation, of 1518 893 Distribution, for 1507 883 Distribution, for — Assignee of Heir at Law, of 1505 883 Distribution, Partial, for 1502 879 Estate, Eights to — Court to Ascertain 1505 881 Executor, by 437 315 Executor to Invest Funds — Order, for 1501 873 Executor, Land to Convey — Order Directing 1496 875 Family, Provision for Support, of 1477 850 Guardian, Appointment, of 1-511 886 Guardian, to Assent to Partition of Land 1514 889 Guardian — Incompetent Person, Appointment, of 1512 887 Guardian — Mortgage Heal Estate, Order to, for 1513 8S8 Guardian — Order of Sale, for 1489 863 Guardian — Sale of Real Estate, for 1488 862 Habeas Corpus— Writ for 1515 890 Heir, Devisee, Legatee, Share of Estate, for 1503 880 Heir at Law— Share of Estate, for 1504 880 Homestead — Decree Setting Apart 1479 851 Homestead — Surviving Wife Vested in — Decree, for 1509 885 Incompetent Person, by — To be Adjudged Competent.. 1510 886 Incompetent Person — Guardian Appointment, of 1512 887 Inheritance Tax — Appointment of Appraiser, for 1520 895 Inheritance Tax — Citation — District Attorney, by 1519 894 Inheritance Tax — Treasurer's Attorney, by 1521 895 Injunction, Order for 1413 809 Inventor, for an Assignee, by 435 315 Joint Inventors, by 4:34 315 Lease, Realty, to — Executor, Administrator, Guardian. 1494 873 Lease Forfeiture of. Relief, vs 15i6 890 Letters of Administration, to Revoke — Regrant 1467 841 Letters— Foreign Will— For 1462 838 Letters Patent for a Design, for 439 316 Letters — Nuncupative Will, Probate, for 1465 839 Letters, to Revoke — Petitioner to Appoint — Executor Nonresident 1475 847 Letters to Revoke — Petitioner to Appoint — Executor Removed from State 1474 846 Mortgage, to 1492 869 Mortgage, Church, to 1493 871 Qrder — Administrator to Convey Land— Objections 1497 876 Order — Executor to Convey Land, Directing 1496 875 Order — Executor to Invest Funds 1501 878 Order, for, Guardian, by — Mortgage Real Estate 1513 888 INDEX. 1067 PETITTON — ContiDTiPd. No. Pa^P. Order — New Bond, for 1470 844 Order— Perishable Personal Property, to Sell 1480 853 Order — Personalty Setting Apart 1478 850 Order of Sale, Guardian, by 1489 86S Order, of Sale— One Sale — Estate Insolvent 1482 Sr,(i Order— Sale Personal Property 1483 857 Order — Sale of Real Estate 1490 864 Order— Sale of Real Estate — All Persons Join 1485 860 Order — Sale of Real Estate — All Persons Assent in Writing 1486 860 Order— Sale of Real Estate — Creditor 1487 861 Order — Sale of Real Estate — Pay Inheritance 1491 86S Order- Will Concealed, to Produce 1461 837 Partial Distribution for 15u2 879 Partition of Land, Guardian may Assent 1514 889 Partner, Surviving, Account to Render 1495 874 Perishable Personal Property, Order to Sell 1480 853 Personalty, Order Setting Apart 1478 850 Probate — Lost Will, of 1464 839 Probate — Nuncupative Will, for — Letters 1465 839 Probate — Will, of 1459 834 Probate of Will — Contest of 1570 942 Probate — Will — Foreign 1462 838 Probate — Will of — Not in Possession of Petitioner 1460 836 Probate — Will, to Revoke 1463 838 Realty, to Lease — Executor, Administrator, or Guardian 1494 873 Real Estate, to Sell — Interest, Heirs, of 1481 853 Reissue (by the Inventor) for a 438 316 Relief vs. Forfeiture, Lease of, for 1516 890 Revoke — Letters of Administration, to 1467 841 Revoke — Letters to — Petition to Appoint — Executor Nonresident 1475 847 Revoke — Letters — Petition to be Appointed — Executor Removed from State 1474 846 Revoke — Probate of Will, to 1463 838 Sale — Order of — One Sale — Estate Insolvent 14S2 856 Sale — ^Personal Property, Order of 1483 857 Sale — Real Estate of. Guardian by 1488 862 Sale of Real Estate — Order of — All Persons Join 1485 S60 Sale of Real Estate — Order of — AU Persons Assent in Writing 1486 860 Sale of Real Estate — Order of— Creditor 1487 861 Sale of Real Estate — Order— Pay Inheritance 1491 868 Share of Estate — Heirs at Law, by 1504 880 Share of Estate — Heir, Devisee of Legatee by 1503 &S0 1068 INDEX. PETITION— Continued. No. Page. Sole Inventor, by ^^^ ^^^ Sole Trader by 1517 892 Special Administrator, Appointment of 1473 84o Surety, of — Release from Bond I'^'^l 84i Surety, of— Release from Bond 1472 845 Surviving Partner, Account to Render 1495 874 WLll Concealed, Order to Produce 1461 837 Will— Lost— Probate of 1464 839 Will— Nuncupative — Probate for— Letters 1465 839 Will— Probate of 1459 834 Will — Probate of — Not in Possession of Petitioner.... 1460 836 Will— Probate— Foreign 1462 838 Will— To Revoke Probate of 1463 838 Writ for Habeas Corpus 1515 890 GENERAL NOTE: Administrator to Give Further Security — 843 Bank Officers — Examination of Respecting Un- claimed Deposits — 849 Citation for — Bank Holding Unclaimed Deposit. ... — 849 Concealed Property — That it may be Delivered to Administrator — 837 Concealed Will to Produce — 837 Declare Rights of all Persons in Estate, to — 882 Distribution for— Bond to be Given, When 879, 880, 881 Examination of Person who has Concealed Prop- erty of Estate, for — 837 Executor to Give New Bond — 842 Family Allowance — Property Sold to Make — 859 Foreign Will to Probate — 838 Guardian to Sell Land to Maintain Ward 862,864 Habeas Corpus, for, Must State What — 899 Letters of Administration for — 841 Lost Will to Probate — 839 Mortgage by Church — What Petition Must Show.. — 873 Mortgage by Executor of Real Estate — What Peti- tion Must Show — 871 Nuncupative Will to Probate — 839 Nonresident Executor — To Revoke His Letters — 847 Probate of Will to Revoke and Grant Letter to Another — ^^2 Revoke Probate of Will — 338 Sale of Real Estate for • 861, 468 Surety Requests to be Released from Bond 844, 84j PLEDGE. Note Secured ^^'^ 223 Note Secured ^•-•^ 323 Note Secured 459 329 GENERAL NOTE: Bids of Sale. . Demand of Pc: Evidence of — Sale of *24 Bids of Sale — ^25 Demand of Performance of Contract — o^4 II^DEX. 1069 PLEDGE— OEKTERAL NOTE— Contimied. No. Page. Ix^ndor 's Lien Doponds on Possesfrion — 324 Lienholflor may Pledge His Interest to the Extent of His Lien — 324 Notice of Sale 324 Notice of Sale Waived — 324 Order of Court to Sell Right of Redemption — ^2r, Pledgor 'a Right at Sale — 324 Pledgor 's Right to Purchase — 32:j Public Auction — Sale at — 324 Rodem[ition — Right of Sale 325 Sale by Pledgee 3-4 Surplus Proceeds of Sale 324 To Secure Debt of Another — 324 Withdrawal of Security 324 POSSESSION. See Writ. Writ of 1578 944 POWER OF ATTORNEY. Custom-house Broker 4^'' 329 General 460 326 Mining Property, to Sell 463 328 Patents, of 440 316 Power to Collect Debts 466 330 Power to Receive Legacy 467 330 Power to Sell Mining Property 463 32S Power to Sell Real Estate 468 330 Power to Sell Stocks 464 329 Power to Vote — Stockholder 's Meeting 469 332 Revocation of Power 470 333 Special Power 461 327 Special Power 462 328 Substitution of Attorney 471 333 Transfer of Stock, to 229 167 PEOBATE HOMESTEADS. See Affidavit; Decree; Notice; Order; Petition. Appraiser (1) Dissents 300 233 Appraisers Admeasure and Set Apart 299 233 Appraiser 's Report Set for Hcariug 301 284 Appraiser's Report (Majority) Accepted by Court 302 234 Appraiser's Report (Minority) Adopted by Court 303 234 Assigned to Widow 290 232 Assigned to Widow 297 232 Death of Head of Family 293 230 Selected by Deceased — Appraisement of 298 232 Separate Property of Deeeaeeti 29o 231 Support of Family 2iJ4 231 1070 INDEX. PEOCEKDINGS SUPPIiEMENTAL TO EXECUTION. See Affidavit; Execution; Order. No. Page. Supplemental to Execution 590 410 Supplemental to Execution 591 410 Supplemental to Execution 1372 786 PEOMISSORY NOTE. See Protest. Flat Loan to Secure to Corporation 474 335 Installment to Secure 476 336 Promissory Note 474 334 Promissory Note 473 334 Promissory Note 477 337 Promissory Note 478 337 Secured by Mortgage 47.") 335 Secured by Mortgage 476 336 GENERAL NOTE: Interest on — 334 "L O. U. $1,000,000," Good — 334 Uncertain — 334 Words "Without Grace" — 334 PEOOF OF THE EXECUTION OF INSTRUMENTS IN WRITING. See Acknowledgment and Proof of Instruments. PEOTEST. Business, Place of, Ascertained, but Maker not Found 483 340 Certificate of Mailing Notice, of 480 338 Certificate that Notice was Personally Served 481 339 Draft Accepted— " Supra Protest" 484 341 Draft Payable at Sight 485 341 Indorser — Notice Left at His Place of Business 481 339 Mailed Notice, of 480 338 Maker Cannot be Found 482 339 Maker Cannot be Found 483 340 Maker Has no Known Place of Business 482 339 Master's (Marine) Protest — Stress of Weather 486 342 Notices Mailed 480 338 Notices Mailed 482 339 Notices Mailed 484 341 Note Payable at Particular Place 480 338 Notice Personally Served 481 339 Notice, Protest, of 479 337 Particular Place — Note Payable at 480 338 Presentation to Maker Personally 481 339 Eesidenee, Ascertained, but Maker not Found 483 340 Residence of Maker Unknown 482 339 Sight Draft 485 341 Supra Protest 4s4 341 Weather, Stress of —Master 's Protest 4S6 342 INDEX 1071 PROXY. 8*e Power of Attorney. No. Page. To Vote Stock 469 332 PUBLIC ADMTNISTRATOB. Appears — Sale of Homestond at 284 229 Appears — Eemits His Pees Voluntarily 286 229 RF.AT. ESTATE, Sale of 1526 904 BECEIPT. Account — In F*all for 496 ^4^ Account, on 491 34."^ For Money Paid 4S7 342 For Money Paid 4SS 342 In Full of All Demands 490 343 Instrument for Record 49S 344 In Full for Less than Amount Due 489 342 Interest Indorsed on Bond to be 495 343 Money Paid for Another 492 343 Money Paid to Third Person, Creditor for 494 343 Papers in a Case 497 343 Special Purpose, for 493 343 Warehouse 1600 966 RELEASE. After Award, in Full 501 344 Condition of, in Contract 504 346 Demands of All 499 344 Demands, of All 500 344 Guardian, to, by Ward 503 345 Indenture by 502 345 Legacy of 505 346 Legacy of 507 347 Lien on Land — .Judgment of 508 347 Partial, of Mortgage 509 348 Satisfaction of Judgment 510 349 Satisfaction of Mortgage 511 349 Trust — Release of 506 346 BEPLEVIN. See Affidavit; Bond; Notice. REPORT. See Account; Affidavit; Order; Notice; Return. Account, Annual, Accompanying 1522 896 Account, Annual, Accompanying 152,^ 901 Appraisers of, No Division of Land 270 224 Appraisers of, Inheritance Tax 1525 903 Dissenting, One Appraiser by .'UO 233 Referee — Eiamination of Account 1524 902 1072 INDEX. BEQUEST. No. Page. Appointment — Executor, Administrator for 1534 913 Inspection, for 1169 697 Sale, Real Estate, of— Objections 1535 913 Sale, Real Estate, of, Objections to 1536 914 BESTITUTION. See Writ. Writ of 1579 945 EETTTKN. See Account; Affidavit; Certificate; Report. Affidavit on 610 421 Attachment or Execution — Levy on Credits, etc., of . . . . 1238 721 Attachment, or Execution — Levy on Shares in Corpora- tion 1239 722 Attachment of Personalty 1235 719 Attachment of Personalty 1236 720 Execution — No Property Found 1233 719 Execution Satisfied 1234 719 General 1232 719 Residence of Person — Service at 1598 965 Sale of Real Estate 1237 720 Search-warrant 1224 716 Subpoena 1548 920 Summons — On Arrest 1229 718 Summons 1230 718 Summons vs. — Corporation 1226 717 Summons — County or City, etc 1228 717 Summons — County, etc., of 1225 716 Summons — Minor Defendant, of 1231 718 SEVXEW. See Order; Petition; Writ. Writof 1576 943 SAIiE. See Affidavit; Notice; Order; Petition; Return. Account of 1526 904 Accountof 1527 906 Goodwill of Business 1599 966 Real Estate — Objections to 1535 913 Real Estate — Objections to 1536 914 Real Estate— Return of 1237 720 Real Estate— Return of 610 431 SEARCH-WARRANT. See Affidavits; Return; Writ. Search-warrant 1572 931 SOLE TRADER. See Affidavit; Decree; Petition, Affidavit to Become 615 424 Decree Establishing 1037 624 Petition to Become 1517 892 INDEX 1073 BTrPrriiATTOlf. No. Page. /' Case Transferring 1537 914 Deposition to Take 153S 915 GENERAL NOTE: Action Transferred, by — 914 Admissions Made at the Trial — 916 Admission that One was Made — Effect of — 916 Agreement — Stipulation is — 91G Attorney, Authority to Make ...., — 916 Attorney, Only, may Stipulate — 916 Client Bound by. When — 916 Consideration not Always Necessary — 916 Depositions Taken by — 916 Effect of, When to Take — 916 Entered, When — 916 Entry of, Time to be Made — 916 Estoppel, as to — 916 Executed Agreements, Under — 916 Execution if, Before Objections Made not Set Aside — 916 Executory Agreements, by — 916 Failure of Consideration for — 916 Piled in Court, Effect, Prior Proceedings — 916 Filed, When to be — 916 Harmonious Construction of Statute — 9' 6 Irrevocable, When — 916 Liberally Construed — 916 Minutes to be Entered on — 916 Must be Filed to be Binding — 916 Nunc Pro Tunc Eutry of — 916 Open Court, Made in — 916 Oral, Admitted, Effect of — 916 Oral, Binding, When — 9J6 Oral, not Binding When •" " Party to Action and — 916 Proceedings Waived by 916 Reliance upon the Word of Reputable Attorney... — 91b Repudiation of ^J^ Signed, Must be — ^^ Testimony as to Use of 9|^ Time Extended by ~ ^^^ SUBPOENA. See Acknowledgment and Proof of Instru- ments; Affidavit; Arbitration and Award; Corouer. Affidavit — Attendance, Nonresident, of 15^1 917 Affidavit, to be Indorsed— Original Subpoena 15.j1 922 Affidavit of Service 1542 918 Application— Witness to Attend to Prove Execution of Conveyance ■•"'''•' 921 Bring Paper, etc., to 1543 919 Certificate of Service 1' i:5 91S Civil Proceedings 1 ''■">;> 916 Coroner's Is4 148' New Forms — 68 1074 INDEX SITBPOENA — Contimicd. Ho. Page. Coroner's 187 149 Coroner's 193 151 Criminal Proceeding in 1544 918 Duces Tecum — Civil Proceedings 1546 920 Nonresident, Affidavit — Seeure Attendance 1541 917 Order— To Attend 1548 920 Return of 1548 920 Service, Affidavit of 1542 918 Service, Certificate of 1543 918 Subpoena, General 1242 723 Subpoena, General 1550 921 Witness, Application for to Prove Execution of a Writing 1549 921 Witness (Nonresident) 1540 917 GENEEAL NOTE: Affidavit that Nonresident, a Material Witness.... — 919 Blank Issued — 919 Books Brought into Court by — 919 Clerk of, may Issue — 919 Contempt Proceeding if Disobeyed — 922 Damage for not Obeying — 922 Description of Books, Papers, etc., in i.. — 919 District Attorney may Issue — 919 Duty of Notary Public to Enforce Obedience — 922 Grand Jury — Witness for — 919 Indictment— In Support of — 919 Information — In Support of — 919 Judges of Superior Court may Issue, Vv^hen — 919 Justice of Supreme Court may issue, When — 919 Magistrate may Issue — 919 Notary Public's Duty to Issue and Enforce — 922 Officers Who may Issue in Civil Proceedings — 922 Papers Brought into Court by — 919 Peace Officer Serving Must Make Written Return — 919 Punishment for Disobedience of — 922 Returning Officers — Sheriff, Constable, Marshal, and Policeman of a Township, City or Town — 919 Return of Service of — 916 Served by any Person — 919 Service — How Made — 919 Witness, Nonresident and — 919 Witness — Nonresident Entitled to Expenses — 919 Witness, Nouresidence not Subject to, When — 919 Witness, Poor, Entitled to His Expenses — 919 SUMMONS. See Affidavit; Notice; Order. Condemnation of Land (Eminent Domain) 1553 923 Coroner 's 185 149 Forcible Entry and Unlawful Detainer — General 1555 925 General 1552 923 INDEX 1075 SUMMONS — Continued. No. Page. Juror of irioG 926 Juror — Coroner 's 1 85 119 Partition of Land I'^ti 92 1 Served by Posting 1595 9G4 SUPPLEMENTAL PROCEEDINGS. See Affidavit; PJx- ecutor; Order. Supplemental Proceedings to Execution .590 410 Supplemental Proceedings to Execution .*»91 410 Supplemental Proceedings to Execution 1372 786 SURETIES. See Affidavit; Order. Justififation by — Affidavit 617 425 Justification by — Affidavit 618 425 TENANT. See Demand; Notice; Lease. TIME. See Affidavit; Notice; Order. TRADEMARK. See Patents. Transfer of 454 321 TRUST. See Deed; Mortgage Notes. UNCLAIMED DEPOSIT. See Affidavit; Notice; Order; Petition. UNDERTAKING. See Bail; Bond. VENIRE. Certificate, Clerk 's 1557 926 Indorsement on 1258 7.'?2 Special 1558 927 VERDICT. Verdict— Defendant (or Plaintiff) 12^9 733 Verdict — Defendant — Counterclaim 1260 733 Verdict— Plaintiff 1261 733 Verdict — Replevin— Defendant, for 1264 734 Verdict — Replevin — Defendant 1263 733 Verdict— Replevin— Plaintiff 12G2 733 Verdict — Replevin — Specific Portions of Property 1265 734 Verdict — Replevin — Specific Portions of Property 126S 735 Verdict — Special Issues Submitted 1266 734 Verdict — Special Issues 1207 735 Verdict— Special Issues 1269 735 Verdict — Special Issues 1270 736 VERIFICATION. See Affidavit. Action — Submission Without Controversy in 1562 930 Attorney, Proceedings to Remove or Suspend ir>tv.' 9.^1 1076 INDEX VERIFICATION— Continued. No. Page. Complaint or Answer to 1559 927 Complaint, Other than Plaintiff, by 1560 930 Election Contests in 1561 930 GENERAL NOTE: Admissions by — 928 Answer, of — 928 Attorney by — 928 Boards of Equalization and — 928 * ' By Oath, ' ' Requires a Positive Statement that the Document is True — 931 Common Law, at Meaning of — 928 Complaint of — 928 Construction of by Courts — 922 Construction of Words in — 929 Form of Words — No Particular Form — 929 Highest Class of — 931 Jurisdiction of Officer Taking — 929 Knowledge, Actual, not Necessary — 929 "Knowledge and Belief" — Words "and Belief" are Surplusage — 929 Law Class of — 930 Legislative Intention as to — 929 Meaning of at Common Law — 938 Officer Acting Within His Jurisdiction — 939 Pleadings, of — 928 Presumption of Law as to — 929 Quasi Judicial Functions of Officer Taking — 929 "Subscribed and Sworn to" Make the Entire Document an Affidavit — 928 Surplus Words in — 929 "Sworn to" as — 928 Unqualified Good, When — 929 "Verified," Meaning of — 929 ' * Venue ' ' not Necessary — 928 WAED. See Affidavit; Notice; Order; Petition. Improperly Supported Affidavit 598 415 WAEEANT. See Affidavit; Order; Writ. Arrest 1567 933 Arrest 1271 736 Bench — Indictment or Information 1565 932 Coroner 's 186 149 Indorsement, Service of 1566 933 Search 1564 931 Service — Indorsement of 1272 737 WILL. See Notice; Order; Petition. Alteration of, by Codicil 550 382 Applicant on Probate, Testimony of 1571 936 Assignment by Trustees to New Trustees 532 375 Attestation of 550 382 Attestation of 556 3S5 INDEX, 1077 WiiiL — Continned. jjq Paee. Attestation of 557 3g5 Attestation of 558 335 Certificate of Ijoss ].'36S 933 Certificate, Proof of 1569 934 Charitable Bequests 539 379 Claim — Annuitant not to Part with Annuity 541 380 Clause — Annuity in 513 354 Clause — Annuity in 52g 374 Clause — Annuity in 534 375 Clause — Annuity in ■ 53^-; 377 Clause — Annuity in 53^ 373 Clause — Annuity in 540 379 Clause — Annuity to End with Its Sale or Assignment.. 541 380 Clause — Bequests — ClKiritable 539 379 Clause — Descendants to Take Maker's Surname 518 368 Clause — Disjwsing of Property with Power to Sell 514 366 Clause — Devise to Trustees with Power to Sell 547 381 Clause — In 1080 INDEX. WTLL— GENERAL NOTE— Continued. No. Page. Charitable Uses — One-third of Estate only Except — 360 Charitable Uses or Purposes — 360 Child Conceived Before the Death of Testator but Born After Takes the Same as If He was Alive at Parent 's* Death — 360 Child's Omitted, Share, how Selected — 358 Children After-acquired and not Provided for Take as Heirs at Law — 358 Children — Deceased Child of, not Provided for in — 358 Children's Descendants and Advancements — 359 Children Omitted from — 358 Children Omitted Intentionally — 358 Children Provided for, in Lifetime of Testator.... — 359 Children Share Alike — All Under — 360 Children Unprovided for Take Nothing, When.... — 359 Codicil — Effect on — 3.53 Codicil Included by — 319 Codicil — Republication by — 353 Codicil Revoked if Wilf is — 357 Competency of Witness — 352 Conjoint or Mutual — 352 Contestant is Plaintiff on Contest — 938 Contest of — 938 Contest of — Competency of Maker of — 938 Contest — Trial of — 938 Contracts to Convey not Canceled by Death and Will _ 356 Conveyance — Effect on — 336 Corporations — Charitable Purposes for, to — 360 Corporation and Testamentary Disposition — 351 Courts, Lawyers, and the Words "in His Lifetime" — 934 Death of Devisee or Legatee of a Limited Interest does not Cut off Remainders — 361 Death of Devisee Prior to Devisor — 359 Debts to be Paid Under — 350 Declaration, Testator, by — 351 Defendant — Petitioner is — 938 Delusion — Insane — 363 Demented Person 's — 349 Descendants of Devisee Take Under the Same as if Ancestor Divided at Death of Testator — 358 "Descendants" — Word, in. Vests Property When. . — 360 Destroying — 354 Destruction of, Proved — How — 355 Devisees — All Contribute to Make up Pretermitted Child 's Share — 358 Devises and Contracts to Convey Land Devised.... — 356 Devise — Land Conveys all Testator's Estate, of.. — 359 Devise — Land Conveys all Devisor's Interest Un- less it Appears that He did not Intend to do so —Of : — 359 Devisee or Legatee Djnng During Life of Testator, the Testamentary Disposition Fails — 361 Devises — Persons or Corporations, for Charitable Uses, to — 360 Devise — Real Property of — Passes A..11 the Tes- tator 's Estate, When — 361 IJTOEX- 1081 "WTLIr— GENTTRAL NOTT — Continaed. No. Page. Devises, Trust in — 360 Donation, Words of — 360 Duo Influence, Proper — 364 Duplicate Revoked, How — 355 Duress — A Ground of Contest, of — 938 Duress — Revocation, Under — 350 Educational Corporations may Take Under — 351 Encumbrance not a Revocation — 356 Estate, the Whole, Milked, to Suckle Pretermitted Child — 358 Execution of — 351 Execution of, not Due, a Ground of Contest — 938 Facts Found at Probate of, Certificate of — 935 False Representations Honestly Made to Testator.. — 363 "Family"— Word, in, Vests Property, When — 360 Feeble Health of Testator — 363 Foreign, Valid as if Made in State — 353 Fraud, Effecting — 350 Fraud, a Ground of Contest of — 938 Fraud, in the Making of — 363 Fraud — Revocation and Influence of — 350 Future Interests and Present, Pass by — 350 Gift Revoked by, if Intention is Expressed — 350 Gift to Witness — 352 Gifts, in View of Death — 350 "Heirs"— Word in, Vests Property, When — 360 "Heirs" — Word in, not Necessary to Derive a Fee — 361 "Holographic" and "Olographic" — 351 Holographic — Olographic, What are — 352 Husband's Death and Widow's Will — Revival... — 356 Inconsistent Subsequent Provisions of Writing Re- voke Prior Provisions, When — 357 Infirm Testator — 863 Influence, Undue — 363 "InUoritanee" — Words of, in, not Necessary to Devise a Fee — 361 "In His Lifetime" — Words Referring to Dead Man 's Actions — 934 Insane Delusion — 363 Intention to Burn, Tear, Cancel, Obliterate, Destroy or Revoke — 354 Inteii. .'^n to Revoke Gift Shown by Will — 350 Interests that Pass by — 350 Interpretai'on of — 361 Intestacy nut Favored — 361 Intoxication — ' 'cstator 's — 363 Issue — Marriage S-ibsequent to Their Rights, of . . . . — 356 "Issue" — Word iu, Vests Prop>erty, When — 360 Judge's Precautions and the Words "In His Life- time" — 934 Judicious Use of Right to Make a — 362 Jury's Idea of what is .Ju.st, Does not Govern.... — 362 Law Books and the Wur.ls "In His Lifetime" — 934 Law Preaumea Capacity to M^^Ue — 349 1082 INDEX. Wm*— GENERAL NOTE— Continned. No. Page. Liawyers, Courts, and the Words, "In His Life- time " ~~ ^^ "Legal Representatives" — Words in. Vests Prop- erty, When — ^0 Leerntoc or Devisee Dying During Life of Testator, ^ Testamentary Disposition Fails — 361 Liability of Devisee — ^^^ Literary Ck)rporations may Take, Under — 351 Lost Will, Established — 934 Lover Influenced by Mistress — 364 Marriage and Revocation of Will — 356 Married Woman, by — 351 Menace Effecting — 350 Menace a Ground of Contest of — 938 Menace — Revocation Under — 350 Mental Capacity to Make is Sufficient in Absence of Fraud, etc — 363 Mental Weakness and Testamentary Capacity.... — 363 Mistress ' Intluence Over Lover as to — 364 Modification of by Codicil — 353 Moral Coercion — 365 Mutual or Conjoint — 352 "Nearest of Kin" — Words, in. Vest Property, yVhen — 360 "Nearest Relations" — Words, in. Vests Property, When — 360 \ "Next of Kin" — Words in. Vest Property, When. — 360 ■ Nuncupative — Circumstances Permitting — 354 I Nuncupative — How Proved — 353 Nuncupative — Neither Declared nor Attested — 353 Nuncupative — Probate of — 354 Nuncupative — Requisites of — 353 Nuncupative — Writing, not in — 351 Obliterating — 354 "Olographic" and "Holographic" — 351 Olographic — Holographic — What are — 552 Omission to Provide for Children in — 358 Oral— Probat« of — 354 Oral— When — 553 "Personal Representative" — Words, in. Vest Prop- erty, When — 560 Pleaders and the Words ' ' In His Lifetime " — 934 Precautious Lawyer and the Words "In His Life- time" — 934 Presence — Testator, When Signed or Witnessed, of — 351 Presumption — Law as to Capacity to Make, of.... — 349 Pretermitted Children — 358 Prior — How, When Revoked by Subsequent — 355 Probate of — Consent of Attorney, to — 944 Probate, Oral, of — 354 Proof — Nuncupative, of — 354 Property Acquired by — 549 Property — Possessing Under — Taken Subject to En- cumbrance — 556 Reason — Testator Unable to — Logically (Satisfac- torily) — 365 INDEX. 1"53 "WXLL -GENERAL NOTE— Continued. No. Page. "Relations" — Word, in, Vests Property, Wlien . . . — 360 "Representatives"— Word, in, Vests Property, When - 360 Republication by Codicil — 3.j3 Revival — Married Woman 's, of — 3.j6 Revival of, Revoked — ^oo Revived— When — ^f* Revocation — Duplicate, of ^2'^ Revocation — Encumbrance, not by ^^^ Revocation — Marriage, by ^j'* Revocation — Marriage, Issue of Marriage — -i-j^ Revocation — A Question of Law and Fact, is — 3.j7 Revocation Revokes Codicil 3.57 Revocation — Subsequent, by 3.>> Revocation — Unmarried Woman's of 3.jtj Revocation — Written, of 35^ Revoked — Revised — ^-ja Right to Make, a -" 362 Rights Under, and Contract to Convey Devised Property — If Sanity — Presumption of "^"^ Scientific — Corporations may Take Under — 3.51 Second Will Destroyed, Prior may be Revived — 35-5 Second Will Revoked and Revival for. Prior — 35.5 Settlement not a Revocatiou — 35 < Signed, to be, by Maker, or -••'^ Signed in Presence of Witnesses -'■> ' Statement, Specific, of Contents of. Lost — 93-1 Subscribed at tlie End— Must be — 351 Subscribing Witnesses — To ^^\ Subsequent — Its Effect upon Prior — 30.^ Succession to Encumbered Property Under — 3o7 Succession Passes by ^-^O Tearing of — 3.->4 Technical Words in **" - Terms, Express, Devising or Denoting, the Tes- tator's Intent, Pass Everything Clearly Appar- ent He Intended Should Pass — 3n9 Testamentary Capacity '^'^;| Testamentary Capacity and Mental Weakness — 3W TestamenUry Disposition — Words of 360 Testator — Capacity of Ti..,tator in Feeble Health, Suffering Under Disease, Aged and Infirm Testator Influenced by i\ilse Representation, Nar- rator Believed to be True Testator's Intentions Govern When Approved by the Court — 353 Testator 's Intoxication — 36.1 Testator's Name to. Written by Witness — 353 Testator's Presence, When Signed or Witnessed — 351 Testator Unable to Reason Logically (Satisfactor- ily to Contestants) — 36."J Trust — Devises in 360 Uncle and His Nephews and Nieces — No Obi ligation to Provide for Them — 360 Undue InJinence Affecting — ^-^^ 36;i 36C •66-2 — 363 — 363 1084 INDEX WTLL— GE^TERAL NOTE— Continued. No. Page, Undue Influence — 363 Undue Influence that Destroys Free Will — 364 Undue Influence a Ground of Contest of — 933 Unmarried Woman 's — 356 Unnatural — Not Disturbed Except for Good Eeasona — 363 Unnaturalness of — 362 Unsound ]\rind, Person of maj^ Make — When — 349 Vagary, Fleeting, not Insane Delusion — 363 Valid In and Out of State— Made — 353 Validity of as a Whole Writing — 938 "Vested," Whatever is, not Devested Until a Pre- scribed Contingency Occurs — 361 What may be Acquired by — 349 What Passes by — 359 Who may Make — 350 Who may Take Under — 351 Who may be Witness to — 352 Wife 's Influence Over Husband — 364 Witnesses to — 351 Witness — Competency of — 352 Witness— Gift to — 352 Witness, Innocent, Deprived of His Inheritance by His and Testator's Ignorance of Law — 353 Witness — Place of Eesidence must Write with His Name, to — 353 Witnesses to Sign — 351 Witness Takes Under as Heir at Law When and What Part — 353 Witness, Who may be — 352 Witness Writing Testator's Name to — 352 Woman — Married, by — 351 Writing must be in. When — 351 Writing — Nuncupative Reduced to — When — 354 Written — Bevocation of — ^4 WITNESS. See Acknowledgment and Proof of Instru- ments; Affidavit; Arrest; Contempt; Deposition; No- tice; Order; Subpoena; Will; Writ. WEIT. Application for 1581 948 Arrest, Witness 1584 953 Assistance of 1577 944 Attachment of 1583 952 Habeas Corpus 1580 946 Juror, Arrest 1585 953 Mandamus — Alternative 1283 743 Mandamus — Peremptory 1284 743 Order — Transcript to be Sent up 1582 951 Possession 1578 944 Beview 1576 94,1 Eestitution 1579 945 INDEX 10S5 WEITTEN rNSTRUMENT— ALTEEATION OF. No. Page, Written Instrument — Alteration of 1586 954 GENERAL NOTE: Account Book — An Instrument in Writing — 956 Accounting for 956 Acknowledgment, Certificate of — 957 Additional Names by 95.S Appeal Bond and Unauthorized Change — 957 Addition of Surety not Harmful — 957 "Alteration," Meaning of — 955 Attached Writings — 959 Authority — Made Without — 95<) Blanks Pilled in Forms 956,959 Bond — Indemnity — 956 Bonds — Interlineation — 95>< Bond — Sureties Released by — 957 Books of Account Changed — 956 Burden of Proof 957, 960 Certificate of Acknowledgment, Altered — 957 Change of Meaning in — 954 Changes in Books of Account — 956 Checks Altered — 956 Consent of Parties to Make 954, 956 Contract in Writing Altered by Other Written Contract or by Executed Oral Agreement.... — 954 Consideration Inserted in Note — 958 Contract Varied by — 956 Commercial Paper Altered — 957 Date of Note in — 958 Deed Cha^iged as to Description — 957 Deeds, Grants, Conveyances, in — 95S Deed — Name of Grantee Filled in — 960 Demand and Notice Waived by — 958 Digests of Cases and the Word "Alteration"..., — 955 Disinterested Person Making — 956 Duplicate Copies Altered — 954 Effect of Alterations — 955 Erasures in Books of Record — 955 Erasure in Printed Form — 956 Erasure of Memoranda — 959 Exhibits Attached to Writing — 959 "Forged Paper," Altered Instrument is — 957 Forma — Blanks Filled in — 956 Form No. 1586 — Good in California without ex- j)lanation — Sedgwick v. Sedgwick, 5(3 Cal. 213., — 955 Gold Clause in Note — 958 Guarantor Released by — 957 Harmful, Must be — 957 Husband and Wife — As to Them — 958 Indemnity Bonus — 956 Identity Lost by — 956 Indorsers Discharged by — 956 Innocently Made — 954 Instrument Annulled by — 957 Instrument not .Vffoctod by, Wlien — 955 Instruments Read (Sometimes) aa They Were Prior to Alteration — 955 10S6 INDEX. WEITTEN INSTRUMElSrT — AliTERATION OF — GEN- ERAL NOTE — Continued. No. Page. Integrity of Instrnment Destroyed — 957 Interest' Blan'. Filled by Rate of — 956 Joint and Several Liability — Changed — 958 Jury to Say if Alteration has been Made — 957 [ Marginal Notes of Alterations — 955 MargjjKj] Notes, Their Value — 955 Material Change, Unauthorized — 957 Materiality of is for Court to Decide — 957 Meaning not Changed — 954 Memoranda Indorsed on Note for Identification.. — 959 Mistake Corrected — 958 Money Paid Under may be Recovered — 957 Names A dded — 958 Name of Payee Changed — 958 Negligence in Connection with — 958 Noting Alterations — Effect of — 955 Official Bonds of — 955 Payee 's Name Changed — 958 Payee Signing Note — 958 Partnership Books Altered — 956 Presumption as to When Made 956, 957 Printed Forms, in — 956 Prior to 1872 (Before the Codes) 955, 956 Producer may Show How, or by Whom Alteration was Made — 954 Producer of Writing Apparently Altered After Execution Must Account for the Alteration — 954 Proof, Burden of 957, 960 Promissory Note, Additional Place of Payment. ... — 958 Promissory Note — "Agent" Added to Signature.. — 959 j Promissory Note — Amount of — 959 j Promissory Note cannot be Altered Except by < Contract in Writing or Executed Oral Agreement — 957 Promissory Note as a Contract — 957 Promissory Note a Contract in Writing — 957 Promissory Note — Consideration for Inserted.... — 958 Promissory Note — Date Altered — 956 Promissory Note — Date of — 958 Promissory Note — Demand and Notice Waived by — 958 Promissory Note — Erasure of Place of Payment.. — 958 Promissory Note — Gold Clause in — 958 Promissory Note — Initial Letter to Name Added.. — 959 Promissory Note — Interest Clause — 958 Promissory INote — Memoranda Added on Back.... — 959 Promissory Note — Memoranda Erased — 959 Promissory Note — Payee Signing — 958 Promissory Note — Place of Payment Altered 956, 958, 959 Promissory Note — Rate of Interest — 959 Promissory Note — Residence Added to Indorser's Name — 959 Promissory Note — Signature Altered — 959 Promissory Note — "Stub" — In Book of Blank Notes — 959 Promissory Note — "Surety" Erased After In- dorser's or Signer's Name — 959 Promis.sory Note — Time Extended — 959 INDEX, 1037 WRITTEN TNib'TRUMirNT — AliTERATION OF — nTTN- EKAL NOTE — Continurrt. So. Page. Promissory Note — Worfl "Tnistros" Addrd — {tofl Recording Altered Instruments — Effect of — UoG Refjardod as ' ' Forged Paper " i)-," Satisfactorily Accounted for 'j;^6 Schedules Attached to 959 Sedgwick v. Sedgwick, 56 Cal. 213, Upholds— Form No. 1.5SG _ 9<55 Signature of One Name to Bond Erased — 9.19 Strangers to Instrument, by — tjr,7 Stub in Book of Blank Notes — 9.09 Subsequent to Codes — 955 Substitution of Names by 9.'3.S Surety Added not Harmful — 9.57 Tax Deed — Altered After Execution — 9.5.'; Undertaking (Bonds) — Interlineations — 9,18 Unauthorized Change and Innocent Holders — 9.",7 Writings Attached to Inatrumenta — 959 LAW LIBRARY CMVERin y OF California U)8 ANGELES UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 683 606 8