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X X a: y. X r- r" H H f« 1^ AN ACT CONCERNING THE COURTS OF JUSTICE OF THIS STATE AND JUDICIAL OFFICERS. PASSED MAY 19th, 1853. The People of the State of California re-presented in Senate and Assembly, do enact as follows : CHAPTER I. COURTS OF JUSTICE IN GENERAL. 1. The following shall be the courts of justice of this State : 1st. The supreme court. 2d. The district courts. 4th. The county courts. 5th. The courts of sessions. 6th. The probate courts. 7th. The justices' courts. 8th. The recorders' courts. 9th. The mayors' courts. CHAPTER II. THE SUPREME COURT. 2. The supreme court of this state shall consist of a chief justice and two associate justices. Each justice hereafter elected or appointed, B 10 THE SUPREME COURT. §3 shall be commissioned by the governor, and before entering upon his duties, shall take the constitutional oath of office. 3. The justices of the supreme court shall be chosen at general elections by the qualified voters of the state. One of the justices shall be chosen at the general election of the year one thousand eight hun- dred and fifty-three, and at the general election every second year thereafter, and shall hold his office for the term of six years from the first day of January next after his election. The senior justice in commission shall be the chief justice. 4. When from any cause a vacancy shall occur in the office of a justice of the supreme court, the governor shall fill the same by granting a commission, which shall continue until the election and qualification of a justice. A justice to fill a vacancy shall be chosen at the first general election subsequent to the occurrence of the vacancy. 1. The absence of a judge from the state is not such a vacancy as can be supplied by the executive. People v. Wells, 2 Cal., 610. 5. The supreme court shall have appellate jurisdiction in all cases where the matter in dispute exceeds two hundred dollars ; when the legality of any tax, toll or impost, or municipal fine is in question, and in all criminal cases amounting to felony, on questions of law alone. 1. This jurisdiction docs not apply in cases of misdemeanor or crimes of a less de- gree than felony. People v. Apph'ijate, 5 Cal., 29,). 6. [1854.] The supreme coiu*t shall have jurisdiction to review upon appeal : 1st. A judgment in an action or proceeding commenced in or removed from another court to the district courts, or county courts, when the matter in dispute exceeds two hundred dollars ; or when the possession or title of land or tenements is in controversy ; or when the legality of any tax, toll or impost, or municipal fine is in question, and to review upon the appeal from such judgment, any intermediate order or decis- ion, involving the merits and necessarily aficcting the judgment. 2d. An order granting or refusing a new trial, or refusing to change the place of trial of an action or proceeding, after a motion is made therefor in tlie cases provided by law, or on the ground that a judge is disc|ualified from hearing or trying the same, or sustainmg or overruling §11 THE SUPREME COURT. 11 a demurrer, or affecting a substantial riglit in an action or pro- ceeding. 1. This jurisdiction is in view of the constitution. Zander v. Coe, 5 Cal., 230. 2. An appeal will not lie to the supreme court unless the amount involved is more than $200. Gordon v. Ross, 2 Cal., 156. Ford v. Smith, 7 ib., January T. 7. This court, and each of the justices thereof, shall have power to issue all writs necessary or proper to the complete exercise of the powers conferred bj the constitution, and by this and other statutes. 8. [1854.] This court may reverse, affirm or modify the judgment or order appealed from, as to any or all the parties, and may, if neces- sary, or proper, order a new trial, or the place of trial to be changed ; when the judgment or order is reversed or modified, this court may make complete restitution of all property and rights lost by the erro- neous judgment or order. 9. There shall be four terms of this court in each year, to com- mence on the first INIonday of January, April, July and October, and to continue until the fourth Saturday thereafter, inclusive, unless all the cases ready for hearing be sooner disposed of. If all the cases ready for hearing be not disposed of, the terms may be continued as much longer as in the opinion of the court the public interest shall require. 10. [1854.] The presence of two justices shall be necessary for the transaction of business, excepting such business as may be done at chambers ; and the concurrence of two justices who have been present at, and heard the arguments, shall be necessary to pronounce a judg- ment. If two who have been present at, and heard the argument, do not concur, the case shall be reheard. 11. The terms of this court shall be held at the capital of the state. If a room in which to hold the court be not provided by the state, together with attendants, fuel, lights and stationery, suita- ble and sufficient for the transaction of business, the court may direct the sheriff of the county in which it is held to provide such room, at- tendants, fuel, lights and stationery, and the ex]:)ense thereof shall be paid out of the state treasury. 12 THE DISTRICT COURTS. §12 CHAPTER III. THE DISTRICT COURTS. 12. [1854, 1855, 1857.] The state shall be divided into fifteen judicial districts, ^Yhich districts shall be numbered, and composed of the several counties and parts of counties, as follows : 1st. The first judicial district shall be composed of the counties of San Diego, Los Angeles and San Bernardino. 2d. The second judicial district shall be composed of the counties of Santa Barbara and San Luis Obispo. 3d. The third judicial district shall be composed of the counties of Santa Cruz, Santa Clara, iNIontcrey and Alameda. 4th. The fourth judicial district shall be composed of that part of the northern portion of the city and county of San Francisco lying north of a line described as follows : commencing at the western boundary of said county, at a point in a line with the center of Bush street, in said city, thence running easterly in a line with and through the center of Bush street, to the center of Larkin street ; thence northerly along the center of Larkin street to the center of Pine street ; thence easterly along the center of Pine street to the center of Kearny street ; thence northerly along the center of Kearny street to a point in a line with the northern side of the city hall or court-house ; thence easterly to and along the northerly line of the city hall or court-house to a point sixty-five feet from the easterly line of Kearny street, thence at right angles southerly, to the southern line of said hall or court-house ; thence westerly along the southern line of said building to the easterly line of Kearny street ; thence southerly along said eastern line of Kearny street to the center of Clay street ; thence easterly along the center of Clay street to a point in the eastern boundary line of said county. 5th. The fifth judicial district shall be composed of the counties of Calaveras, Amador, Tuolumne and San Joaquin. Gth. The sixth judicial district shall be composed of the county of Sacramento. 7th. The seventh judicial district shall be composed of the counties of Marin, Sonoma, Mendocino, Napa, Solano and Contra Costa. §15 THE DISTRICT COURTS. 13 8tli. The eip;htli judicial district shall be composed of the comities of Humholdt, Klamath and Del Norte. 0th. The ninth judicial district shall be composed of the counties of Shasta, Siskiyou and Trinitj. 10th. Tlie tenth judicial district shall be composed of the counties of Yuba and Sutter. 11th. The eleventh judicial district shall be composed of the counties of El Dorado, Placer and Yolo. 12th. The twelfth judicial district shall be composed of that portion of the city and county of San Francisco which is not included within the - limits of the fourth judicial district, as above described, and of the county of San Mateo. 13th. The thirteenth judicial district shall be composed of the counties of Mariposa, Tulare, Frezno, Merced and Stanislaus. 14th. The fourteenth judicial district shall be composed of the coun- ties of Sierra and Nevada. 15th. The fifteenth judicial district shall be composed of the counties of Plumas, Butte, Colusi and Tehama, The jurisdiction of the district court of the fourth judicial district, in the county of San Francisco, and throughout the state, shall remain and continue as heretofore. The jurisdiction of the district court of the twelfth judicial district, in the county of San Francisco, and throughout the state, shall be co- extensive with the jurisdiction of the district court of the fourth judicial district. 13. There shall be a district judge for each of the judicial dis- tricts. The courts held by them shall be the district courts of this state. 14. The district judges shall be chosen by the qualified electors of their respective districts, at the general election in the year one / i^ 6 ^ thousand eight hundred and fifty-eight, and at the geiieral election ^ every six years thereafter, and shall enter upon their duties on the first day of January subsequent to their election. > r^«-7' «iy«-«<-o^ ^"H*^ ' 15. In case of vacancy, from any cause, in the oflBce of the district judge, the governor shall fill the same by granting a commission, which shall continue until the election and qualification of a judge in his place. 14 THE DISTRICT COURTS. §16 JO y A judge to fill the vacancy, shall be chosen at the first general election subsequent to the occurrence of the vacancy. C- ^^ ^i *- ^'■"'^'^ IG. Each district judge hereafter elected or appointed, shall be commissioned by the governor, and before entermg upon his duties, shall take the constitutional oath of office. 17. [185.3.] Each judge shall reside in his district, except that the judge of the fourth and twelfth judicial districts may reside in any part of the county of San Francisco, and no person shall be ehgible to the office of district judge who shall not have been a citizen of the United States and a resident of this state for two years, and of the district, six months previous to his election. 18. The jurisdiction of these courts shall be of two kinds : first, original ; second, appellate. 1. Appellate jurisdiction held unconstitutional. People v. Pcra/to, 3 Cal., 379 ; Cauljii'ld V. Hudson, 3 Cal., 389 ; Ilernandes v. Simon, 3 Cal., 464 ; lieedv.McCormick, 4 Cal., 342 ; Townsend v. Brooks, 5 Cal., 52; Reyes v. Siin/ord, 5 Cal., 117. 19. Their original jurisdiction shall extend to all civil cases where the amount in dispute exceeds two hundred dollars, exclusive of interest, and to all criminal cases not otherwise provided for. In cases involv- ing the title or possession of real property, and in all cases of fact joined in the probate court, their jurisdiction shall be unlimited. 20. In all the counties of this state, the district courts shall have jurisdiction to try and determine all indictments transmitted to them from the court of sessions, in the cases provided for by law. 21. [1854.] The appellate jurisdiction of these courts, shall ex- tend to hearing upon appeal : 1st. A judgment of a court of sessions in a criminal action. 2d. A jutlgment of a court of sessions, rendered on appeal from jus- tices', mayors', or recorders' courts, in a criminal action. 3d. An order or judgment of a probate court, in the cases prescribed by statute. Appellate jurisdiitioii iield unconstitutional. See Section 18. 22. These courts, and the judges thereof, shall have power to issue §27 THE DISTRICT COURTS. 15 all writs necessary or proper to the complete exercise of the power con- ferred upon them by the constitution, and by this and other statutes. 23. The terms shall be held at the county seats of the several counties ; if a room for holding the court be not provided by the county, together with attendants, fuel, hghts and stationery, suitable and suffi- cient for the transaction of business, the court may direct the sheriti to provide such room, attendants, fuel, lights and stationery, and the expenses thereof shall be a county charge. 24. The terms shall be held until the business of the term is fully disposed of, or until the day fixed for the commencement of some other term in the district, and may be adjourned from time to time in the discretion of the court. 25. [1858.] The district judges shall at all reasonable times, whe'i not engaged in holding courts, transact such business at their chambers as may be done out of court, at chambers ; they may try and deter- mme writs of mandamus, certiorari and quo warranto, hear and dis- pose of all motions and applications for neiv trials, and all orders and writs which are usually granted in the first instance upon an ex parte application, and may in their discretion, also hear applications to dis- charge such orders and writs. 26. [1854.] Whenever an action or proceeding is commenced in a district court, in which a county court has concurrent jurisdiction, the district court may, if the parties consent, by order, transfer the same to the county court of the same county ; upon such transferrence, the county court shall have and exercise over such action or proceeding, the same jurisdiction as if originally commenced therein. 27. A district judge may hold a term in any judicial district in this state upon the request of the judge of the district in which such term is to be held ; and when by reason of sickness or absence from the state, or from any other cause, a term cannot be held in a district by the judge thereof, a certificate of that fact shall be transmitted by the clerk to the governor, who shall thereupon direct some other dis- trict judge to hold such term. It shall be the duty of the judge thus directed to hold such term. 16 THE COUNTY COURTS. §28 28. Each district court shall have power to make rules, not incon- sistent with the constitution and laws of this state, for its own government and the government of its officers, but such rules shall not be in force until thirty days after their adoption and publication, and no rule shall be made imposing any tax or charge upon any legal proceeding, or making an allowance to any officer for services. CILIPTER IV. Sees. 29 to 39 inclusive, repealed. Statutes of 1857, 128. CHAPTER V. THE COUNTY COURTS. 40. There shall be in each of the counties of this state a county court, with the jurisdiction conferred by this chapter. 41. The county judge of each county shall be the judge of the county court. The county judge of each county shall, except in the cases otherwise provided by special statutes, be chosen by the electors of the county at the general election in the year one thousand eight hundred and fifty-three, and every four years thereafter, and shall enter upon the duties of his office on the first Monday of April subsequent to his election. Before entering upon his duties he shall take the con- stitutional oath of office. 42. In case of a vacancy in the office of county judge the vacancy shall ]»c filled l)y appointment from the governor until the next general election, when a county judge shall be chosen for tlic unexpired term of the preceding judge, and until the new judge elected be quaUfied. 43. The county court shall have jurisdiction to hear and determine §47 THE COUNTY COURTS. 17 all civil causes appealed thereto from a justice's, mayor's, or recorder's court, in the county. 1. The autliority to try these cases anew is the exercise of appellate, and not of orig- inal jurisdiction. Toicnsend V. Brooks, 5 Cal., 52. 2. Appeals taken from a justice's court to the county court upon questions of law alone, when reversed by the county court, shall be tried anew in the county court, and not be remitted to the justice. People v. Freclon, 7 Cal., Oct. T. 4-1:. The county court shall have original civil jurisdiction : 1st. Of an action to enforce the lien of mechanics and others. 2d. Of an action to prevent or abate a nuisance. 3d. Of all proceedings against ships, vessels or boats, or against the owners or masters thereof, when the suit or proceeding is for the re- covery of seamen's wages, for a voyage performed in Avliole or in part without the waters of this state. 4th. Of proceedings in cases of insolvency. 1. 1st, the county courthas no jurisdiction to enforce a mechanic's lien, where the amount in controversy exceeds $200. Brock v. Herrick,5 Cal., 279. 2. 4th, sustained in Harper v. Freelon, 6 Cal., 76. 45. The county court and the judge thereof shall have power, at /^ jTTl. chambers, to try and determine writs of mandamus, certiorari and quo - ~Z ivai'ranto, and to issue all writs necessary or proper to the complete -^'Vi exercise of the powers conferred upon it by this and other statutes. 46. This court shall hold a term on the first Monday of January, March, May, July, September and November of each year, which shall continue until all the business of the court be disposed of. Special acts have frequently been passed creating different tenns in many counties. See table, p. 8. 47. If a room for holding the court be not provided by the coimty, together with attendants, fuel, hghts and stationery, suita- ble and sufficient for the transaction of business, the court may direct the sheriff to procure such room, attendants, fuel, lights and stationery, and the expenses thereof shall be a county charge. It is the duty of county judges to reside at the county seats of tlieir respective coun- ties, except in the following : Yolo, Alameda, Contra Costa, Tulare, Yuba, San Diego, Sacramento, Plumas, Sutter, Colusi, San Luis Obispo, Tehama, Sun Mateo, and Santa Cruz. Statutes of 1854, 1855 and 1857. 18 THE COURTS OF SESSIONS. §48 CHAPTER YI. THE COURTS OF SESSIONS. 48. There shall be in each of the counties of this state a court de- nominated a court of sessions, with the jurisdiction conferred by this chapter. 49. The court of sessions of each county shall be composed of the county judge, who shall be the presiding judge thereof, and two jus- tices of the peace of the county, as associate justices. 1. The courts can exercise none but judicial powers, and all other powers confeiTcd are unconstitutional. Binyoi/ne v. Supervisors of San Francisco county, 5 Cal., 9 ; Phelanv. Counti/ of Sun Francisco, 6 Cal., 531. 50. The associate justices of the court of sessions shall be chosen by the justices of the peace of the county. The county judge shall convene, at the county seat, on the first Monday of the mouth subse- quent to the general election in each year, the persons elected as justices of the peace of the county at said preceding general election ; and they, after being qualified and filing their respective bonds as such justices, as required by law, shall elect, by ballot, two of their number as associate justices of the court of sessions. The county judge shall preside over the convention, and the county clerk shall be its clerk. A majority of the persons who have qualified and filed their bonds as justices of the peace of the county, shall form a quorum for the pur- pose of the election. A minute of the proceedings of the convention shall be entered in the records of the courts of sessions. A certificate of election shall be given by the county judge and clerk, under the seal of the court of sessions, to the two persons who receive a majority of all the votes cast. Should there be no election for associate justices held at the time above prescribed, the county judge shall at any time be authorized to call an election for such purpose, by giving ten days' notice thereof, 1. The presence of the county judge and clerk of the convention is not essential, and if they refuse to attend, tlie election by the justices will still be valid. Gorham \. VamjMI, 2 Cal., 135. §55 THE COURTS OF SESSIONS. 19 2. The court of sessions cannot be liolden by the county judge and one associate jus- tice; there must be the county judge and two associate justices to constitute the court. People \. Ah Chumj, 5 Cal., 103. 51. If the justices of the court of sessions, or either of them, be absent at a term of a court of sessions, or the office of those justices, or either of them, be vacant, the county judge shall supply the vacancy or deficiency for the term, by designating the requisite number to form the court from the justices of the peace of the county. 62. [1854.] The courts of sessions shall have jurisdiction : 1st. To inquire, by the intervention ofca grand jury, of all public offenses committed or triable in its county^V^^--'^---'-^ '^^-<) ^^ ^ M^^^.i^z)-^.^ 2d. To try and determine all indictments found therein, for all public offenses, except murder, manslaughter and arson. e^^-^tL /\ ' a cJ 3d. To hear and determine appeals from justices', mayors' and re- corders' courts, in cases of a criminal nature. 1 . 3d. This appellate power declared unconstitutional. People v. Fowler, 8 Cal., Jan. T. 53. [1854.] When an indictment is found in the court of sessions for murder, manslaughter, or arson, it shall be transmitted by the clerk to the district court sitting in the county, for trial ; except when the in- dictment is found against a person holding the office of district judge, when it shall be transmitted to the district court of such other district as the court of sessions may direct. 54 [1854.] Indictments found in the court of sessions shall be transmitted to the district court sitting in the county, for trial, in the following cases : 1st. \Yhenever a judge or justice of the court of sessions is by law disqualified from hearing or trying the same. 2d. Indictments found agahist a member of the court of sessions, or any justice of the peace of the county. 55. The court of sessions, except in the counties in which a board of supervisors is established, shall also have power and jurisdiction in its county : 1st. To make orders respecting the property of the county, in confor- mity with any law of this state, and to take care of and preserve such property. 20 THE COURTS OF SESSIONS. §55 2d. To examine, settle and allow all accounts legally chargeable against the county, and to direct the levying such per centage on the assessed value of real and personal property in the county as may be authorized by law. 3d. To examine and audit the accounts of all officers having the care, management, collection and disbursement of any money belonging to the county or appropriated bylaw, or otherwise, for its use and benefit. 4th, To control and manage public roads, turn})ikes, ferries, canals and bridges within the county, where the law does not prohibit such jurisdiction, and to make such orders as may be necessary and requi- site to carry its control and management into effect. 5tli. To divide the county into townships, and to create new townships and to change the divisions of the same, as the convenience of the county may require. 6th. To establish and change election precincts. 7th. To control and manage the property, real and personal, belong- ing to the county, and to receive by donation any property for the use and benefit of the county. 8th. To purchase any real and personal property necessary for the use of the county ; j^fovidecl, the value of such real property be previ- ously estimated by three disinterested persons, to be appointed for that purpose by the district court of the county. Otli. To sell and cause to be conveyed any property belonging to the county, appropriating the proceeds of such sale to the use of tlie same. 10th. To cause to be erected and furnished a court-house, jail, and such other public buildings as may be necessary, and the same to be kept in repair ; ^nvvided, that the erection of such court-house, jail, and other public buildings, be let out, after one month's previous pub- lication, in each case, of a readiness to receive proposals therefor, to the lowest bidder, who will give good and sufficient security for the completion of any contract which may be made respecting the same. lltli. To ascertain and determine with a jury, or by consent of par- ties, without a jury, the just compensation to be made to the owners of private property taken for public use. 12th, To do and perform all such other acts and things as may be requisite and necessary to the full discharge of the powers and jurisdic- tion conferred on tlic court. 1. All jiowcrs wliicli are not jiulicial arc unconstitutional, when conferred unon the §60 THE COUllTS OF SESSIONS. 21 court of sessions. Burgoi/ne v. Sujtervisors of Sa7i Francisco counti/, 5 Cal. 9 ; Phclan v. County of San Francisco, 6 Cal., 531. 2. Tlic powers conferred on the courts of sessions have been subsequently conferred on the board of supervisors in each county. Statutes of 1855, 51. 5Q. "When any bay, river, stream, creek or slough separates two counties, the court of sessions of the county lying on the left bank de- scending such bay, river, stream, creek or slough, shall have the juris- diction of the same, so far as the control and management of bridges and ferries are concerned, but all sums paid for licenses to construct any bridges, or to run any ferries over such river, stream, creek, or slough, shall be divided equally between the two counties. 57. All accounts, vouchers, papers, petitions and documents relat- ing to the business or property of the county, shall be appropriately arranged under their several heads, filed in the office of the county clerk, and preserved separate from the papers and documents of the court, as a court having criminal jurisdiction. 58. The orders, judgments and proceedings of the court when sit- ting for the transaction of county business shall be entered by the clerk, in separate books to be kept for that purpose. 59. [1854, 1855.] A term of the court of sessions shall be held at the county seat in each county on the first Monday of February, April, June, August, October and December of each year, excepting the county of Calaveras, where the terms of said court shall be held on the second Monday of January, March, May, July, September and No- vember, and excepting also the county of Placer, where the terms of said court shall be held on the second Monday of February, IMay, Au- gust and November in each year, and shall continue until the com- mencement of the next term, unless all the business of the court be sooner disposed of. Special terms of the court may also be held when- ever, in the opinion of the county judge, the pubhc interests require the same. Special acts have frequently been passed creating different terms in many counties. See table, p. 8. (30. Until a court-house be erected for the county, this court may direct the sheriff to furnish a suitable room for holding the court, and the expenses thereof shall be a county charge. This court may, also, 22 THE PROBATE COURT. §61 at any time, direct the sheriff to furnish attendants, fuel, lights and stationery suitable and sufficient for the transaction of business, and the expenses thereof shall be a county charge. CHAPTER VII. THE PROBATE COURT. Gl. There shall be in each county, a probate court with the juris- diction conferred by this chapter. 62. The county judge of each county shall be the judge of the probate court. 63. The probate court shall have power to open and receive the proof of last wills and testaments, and to admit them to probate ; to grant letters testamentary, of administration and of guardianship, and to revoke the same, for cause shown according to law ; to compel ex- ecutors, administrators and guardians to render an account when re- quired, or at the period fixed by law ; to order the sale of property of estates or belonging to minors ; to order the payment of debts due by estates ; to order and regulate all partitions of property or estate of deceased persons ; to compel the attendance of witnesses ; to appoint appraisers or arbitrators ; to compel the production of title deeds, pa- pers or other property of an estate or of a minor ; and to make sucli other orders, as may be necessary and proper, in the exercise of the jurisdiction conferred upon the probate court. 64. The county judge shall have power in vacation to appoint ap- praisers, to receive inventories and accounts to be filed in his court ; to susi»cnd tlie powers of executors, administrators, or guardians in tlie cases allowed by law ; to grant special letters of administration or guardiansliip ; to approve claims and bonds, and to direct the issuance, from this court, of all writs and process necessary in the exercise of his powers as probate judge. §67 justices' courts. 23 65. The county judge of the county of San Francisco shall hold a probate court at the city of San Francisco, on the third Monday of January, March, May, July, September and November ; provided, that each term of said court shall continue until the commencement of the next term, unless all the business of the court be sooner disposed of. In the other counties of the state, the county judge shall hold a pro- bate court on the fourth Monday of each month. Special acts have fretjuently been passed creating different terms in many counties. See table, p. 8. CHAPTER yill. justices' courts. QQ). The courts held by justices of the peace in this state shall be denominated justices' courts, and shall have the jurisdiction conferred by this chapter, but nothing contained in this chapter shall affect their jurisdiction in actions or proceedings now pending therein, nor shall it affect any judgment or order already made, or proceedings already taken. 67. [1856.] Justices' courts shall have jurisdiction of the follow- ing actions and proceedings : 1st. Of an action arising on contracts for the recovery of money only, if the sum claimed, exclusive of interest, does not exceed two hundred dollars. 2d. Of an action for damages for injury to the person, or for taking or detaining personal property, or for injuring real or personal prop- erty, if the damages claimed do not exceed two hundred dollars. 3d. Of an action for a fine, penalty or forfeiture, not exceeding two hundred dollars, given by statute or the ordinance of an incorporated city. 4th. Of an action upon a bond conditioned for the payment of money not exceeding two hundred dollars, though the penalty exceed that sum, the judgment to be given for the sum actually due ; when the 24 justices' courts. §68 payments arc to be made by instalments, an action may be brought for each instahncnt as it becomes due. 5th. Of an action upon a surety bond or undertaking taken by them, though the penalty exceed, if the amount claimed does not exceed two hundred dollars. Gth. Of an action for the foreclosure of any mortgage, or the enforce- ment of any lien on real or personal property, -svhen the debt secured docs not exceed, exclusive of hiterest, two hundred dollars. 7th. Of an action to recover the possession of personal property -when the value of such property does not exceed two hundred dollars. 8th. To take and enter judgment on the confession of a defendant when the amount confessed does not exceed two hundred dollars. 9th. Of an action for a forcible or unlawful entry upon, or a forcible or unlawful detention of, lands, tenements or other possession. 10th. Of an action to determine the right to a mining claim, and for damages for injury to the same, when the damages claimed do not ex- ceed two hundred dollars. 11th. Of proceedings respecting vagrants and disorderly persons. 68. [1856.] The jurisdiction conferred by the last section shall not extend, however : 1st. To a civil action in which the title to real property shall come in question. 2d. N(jr to an action or proceeding against ships, vessels or boats, or against the owners or masters thereof, when the suit or proceeding is for the recovery of seamen's wages for a voyage performed in whole or in part without the waters of this state. 69. [1855.] These courts shall also have jurisdiction, except Avithin the limits of the city of San Francisco, of the following public oftenscs committed within the respective counties in which such courts are established : 1st. Petit larceny. . 2d. Assault and battery, not charged to have been committed upon a public officer in the discharge of his duties, or with intent to kill. 8d. Breaches of the peace, riots, affrays, committing a wilful injury to property ; and all misdemeanors, punishable by fine, not exceeding five hundred dollars, or imprisonment not exceeding six months, or by both such fine and imprisonment. §73 KECORDEIIS' COUllTS. 25 70. There shall be no terms in justices' courts ; these courts shall always be open. 71. Justices of the peace shall hold their offices for one year, and until their successors are elected and qualified. They shall be chosen by the electors of their respective townships or cities at the general election in the year one thousand eight hundred and fifty-three, and at the general election every year thereafter, and shall enter upon their duties on the first Monday of the month subsequent to their election. Whenever a vacancy shall occur in the office of a justice, by death, res- ignation or otherwise, a special election may be ordered by the county judge to supply such vacancy. The justice elected to supply a vacancy shall hold his office only for the unexpired term of his immediate pred- ecessor. Each justice, before entering upon the discharge of his duties, shall take the constitutional oath of office, and shall execute a bond to the state in the sum of five thousand dollars, conditioned for the faithful performance of his duties, and file the same with the county clerk. 1. Justices of the peace in San Francisco county, hold their offices for two years. — Consolidation act, statutes of 1856, 147, §6. CHAPTER IX. recokder's court. 72. The recorders' courts which are already established, or which may hereafter be established, in any incorporated city of this state, shall have jurisdiction : 1st. Of an action or proceeding for the violation of any ordinance of their respective cities. 2d. Of an action or proceeding to prevent or abate a nuisance within the limits of their respective cities. 3d. Of proceedings respecting vagrants and disorderly persons. 73. The recorders' courts already established, or Avhich may here- after be established, shall also have jurisdiction of the following pubHc offenses committed in their respective cities : 1st. Petit larceny, c 26 recorders' courts. §74 2cl. Assault and battery, not charged to have been committed upon a public oflficer, in the execution of his duties, or with intent to kill. 3d. Breaches of the peace, riots, afirays, committing willful injury to property and all misdemeanors punishable by fine not exceeding five hundred dollars, or imprisonment not exceeding three months, or by both such fine and imprisonment. 74. A recorder's court shall be held by a judge, who shall be des- ignated as the " Recorder of the City ;" and said court shall be held at such place in the city within which it is established, as the govern- ment of such city may by ordinance direct. 75. The recorders shall be chosen by the electors of their respec- tive cities, on a day to be fixed by the government of such cities, and shall hold their offices for one year, unless a longer period be fixed in the acts incorporating such cities, in which case, for such period fixed. Before entering upon their duties they shall take the constitutional oath of office. 76. The recorders shall receive a compensation to be fixed by the charter, or when not so fixed, by the government of their respective cities, to be paid by such cities quarterly, in ec^ual proportions. Such compensations shall not be increased or dimhiishcd during the period for which they arc elected. 77. The recorders shall possess the powers and exercise the du- ties of committing magistrates, in the criminal cases in which the courts held by them have no jurisdiction by this act ; and as such magistrates, they may examine, commit or discharge, all persons brought before them, as the justice of the case may require. 78. Recorders and recorders' courts may issue all process, writs and warrants, and may make any and all orders necessary and proper to the complete exercise of their powers. 79. There shall be no terms in recorders' courts. These courts shall always be open. §84 mayors' courts. 27 CHAPTER X. mayors' courts. 80. The mayors' courts which are ah-eadj established, or which may hereafter be estabhshed in any incorporated city of this state, shall have the same jurisdiction of actions and of public offenses com- mitted in their respective cities, which is conferred by this act upon recorders' courts. 81. The mayors of incorporated cities, when authorized by law to hold a court in their respecti%^e cities, shall possess the same powers as committing magistrates, as are conferred by this act upon recorders of cities. 82. The mayors' courts, and the mayors as the judges of such courts, may issue all process, writs and warrants, and may make any and all orders necessary and proper to the complete exercise of their powers. CHAPTER XI. GENERAL PROVISIONS RESPECTING THE COURTS OF JUSTICE AND JUDICIAL OFFICERS. ARTICLE I. COURTS OF RECORD : PUBLICITY OF THE PROCEEDINGS OF THE COURTS AND THEIR INCIDENTAL POWERS. 8-3. The supreme court, the several district courts, the several county courts, the several courts of sessions, and the several probate courts of this state, shall be courts of record. 84. The sittings of every court of justice shall be public, except as s provided in the next section. 28 PARTICULAR DISQUALIFICATION OF JUDGES. §85 85. In an action for divorce, the court may direct the trial of any issue of fact joined therein to be private ; and upon such directions all persons may be excluded except the officers of the court, the parties, their witnesses and counsel. 86. Every court shall have power : 1st. To preserve and enforce order in its immediate presence. 2d. To enforce order in the proceedinartner is a necessary party to an action by the copartnership. Secor V. Keller, 4 Ducr, 416. 7. Every action must be prosecuted in the name of the real party in infjrest. Cam- den Bank V. Rothjers, 4 How. Pr., 63. 8. An endorser of negotiable paper is not an assignor within the meaning of the act. Anderson v. Busteed, 5 Duer, 485. 9. No formality is necessary to effect the transfer of a chose in action. Any trans- action between the contracting parties, which indicates their intention to ])ass tiie l(one- (icial interest in the instrument from one to the other, is suthcicut for that purpose ; a §6 PARTIES TO AN ACTION. 35 debt or claim may be assigned by parol as well as by writing:. — 2 Sto. Eq., §1047. lleath V. //((//, 4 Taunt., .326 ; Slawjhtrr v. Faust, 5 Blackf.,.380 ; Moiitfpmen/ v Dilliiuf ham, 3 Sme. & M., 647 ; Hastings v. McKiiilei/, 1 E. D. Smith, 273 ; Clark v. iJownimj, ib.' 406 ; James v. Chalmers, 5 Sand., 52. /^. C a^ . J'JLS . 5. In the case of an assignment of a thing in action, the action bj the assignee shall be Avithout prejudice to any set-off or other defense, existing at the time of, or before notice of the assignment ; but this section shall not apply to a negotiable promissory note, or bill of ex- change, transferred in good faith, and upon good consideration before due. 1. If plaintiff was assignee in good faith, and demanded goods within a reasonable time, a notice of the assignment was not necessary to charge defendants, and if they deliver goods to an attaching creditor it is at their own risk ; Monjan v. Lowe, 5 Cal., 325. 2. What is a good consideration in the assignment of a promissory note ? Payne V. Bensley, 7 Cal., Oct. T. 3. The admission or declarations of an assignor of a chose in action, made while ho is the holder and before assignment, are evidence against his assignee, and all claiming under him.— 2 Phill. Ev., (C. & H. Ed.; note 446, pp. 387, 644, 663. Broivti v. Ma- graw, 12 Sme. & M., 267 ; Grand Gulf Bank v. Wood, ib., 482. 4. The assignee of a cause of action, assigned after action brought, is liable to the defendant for costs, if he (the assigneee) proceed in the action after the assignment, and in such a case he takes the demand cum onere, and is liable for the costs which had ac- crued before, as well as those which arise after the assignment. Miller v. Franklin, 20 Wend., 630. 5. Where an assignee having money in bank makes an assignment for the benefit of his creditors, soon after which, but before notice, a bill held by the bank fell due and was charged in the account of insolvent, held that the assignee was entitled to re- cover it of the bank. Beckwith v. Union Bank of New York, 5 Selden, 211. 6. [1854.] An executor or administrator, or trustee of an ex- press trust, or a person expressly authorized by statute, may sue without joining with him the person or persons for whose benefit the action is prosecuted. A trustee of an express trust within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another. 1. An attorney in fact does not hold the character of trustee, and is not a neces- sary party to a suit to represent the interest of a principal. Powell v. lioss, 4 Cal., 197. 2. Bonds taken in the name of the people of the state, for the benefit of others should not necessarily S^prosecuted in the name of the people, but in that of the party in interest. Baker v. Bartol, 7 Cal., April T. 3. An assignee of a demand in trust to pay certain creditors of the assignor, and 36 PARTIES TO AN ACTIOX. §7 the balance to the assifrnor liimsclf, may bi ing an action in the premises in his own name. Lewis v. Graham, 4 Abbott, 106. 4. Mercantile factors, or agents doing business for others but in their own names, are trustees of an express trust. Grinnell v. Scmidt, 3 Code R., 19 ; 2 Sand., 706. 5. Also, an auctioneer. Boijart v. 0' Regan, 1 E. D. Smith, 590 ; Minturn v. Main, 3 Seld., 220. 7. ^Vlien a married -woman is a party her husband shall be joined ^Yitll her ; except that, 1st. When the action concerns her separate property she may sue alone ; 2d. When the action is between herself and her husband she may sue or be sued alone. 1. 1st. Sustained, as referring to property in the statute denoted separate property ; it does not refer to rents accruing, &c. Snijder v. Webh, S Cal., 8.3. 2. 2d. The object is to take away the necessity of suing by prorhein ami, and being a remedial statute, must be beneficially construed. Kashaw v. Kashaw, 3 Cal., 312 ; McKune v. McGarvey, 6 Cal., 497 ; Guttman v. Scannell, 7 Cal., April T. 3. A wife cannot sue alone to recover the homestead, it is a joint estate, and both husband and wife must join in the action. Poole v. Genard, 6 Cal., 71. 4. If the wife is improperly joined it must be taken advantage of by demurrer. Tissot V. Throckmorton, 6 Cal., 471. 5. In an action to recover real property when the wife is the owner of the fee and the husband tenant by the courtesy initiate, the husband and wife may and should join in the action. Imjraham v. Baldivin, 12 Barb., 9. 6. In an action to foreclose a mortgage executed by husband and wife on the lands of the wife, both should be sued. Conde v. Shcnhard, 4 How. Pr., 75 ; Conde v. Xelson, 2 Code R., 58. 8. If a husband and wife be sued together the wife may defend for her own right, 1 . Where the defense of the wife is a special one, she can defend for her own right as well when sued jointly, as if the trial was separate. Deuprez v. Deuprez, 5 Cal., 387. 9. When an infant is a party he shall appear by guardian, who may be appointed by the court in wliich the action is prosecuted, or by a judge thereof, or a county judge. 1. The taking judgment against an infant as for want of an answer without ap- pointing a guardian ad litem is an irregularity, and the plaintiff's want of knowledge that the defendant is a minor will not serve to make tlie judgment regular. The judg- ment so taken will be set aside on motion and without imposing terms. AV//077 v. KlorL;2 CodcR., 27. 10. The guardian shall be aj)pointed as follows : 1st. When the infant is })laintiS', upon the application of the infant, §14 PARTIES TO AN ACTION. 37 if he be of the age of fourteen years ; or if under that age, upon the apphcation of a relative or friend of the infant ; 2d. When the infant is defendant, upon the apphcation of the infant, if he be of the age of fourteen years, and apply within ten days after the service of the summons ; if he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend to the infant. I . Where the infant is plaintiff" he must have a guardian appointed before the action is I'onuneiiced. Hill v. Thacter, 2 Code R., 3. 11. A father, or, in case of his death or desertion of his family, the mother may maintain an action for the injury or death of a child ; and a guardian for the injury or death of his ward. 12. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided in this act. 1. Different persons owning separate tenements, affected by a nuisance, may join in one action to obtain an injunction to restrain tiie continuance of it. Perk v. Elder 3 Sand., 126. 13. Any person may be made a defendant who has, or claims, an interest in the controversy, adverse to the plaintiff, or who is a neces- sary party to a complete determination or settlement of the question involved therein. See Sees. 527, 658. 1. The plaintiff in an ejectment suit may sue one or more defendants, and they may answer separately, or demand separate verdicts. WiiKtns v. Christy, 4 Cal., 70. 2. An appeal does not lie from an order making a new party defendant. Beck v. City of San Francisco, 4 Cal., 375. 3. When several defendants are sued on a joint liability, there can only be a joint recovci-y and judgment; and no judgment can be entered by plaintiff, until all the de- fendants served have had the full time to answer. Jacques v. Greenwood, 1 Abbott, 230. 4. Where a sheriff is liable for the trespass or misfeasance of his deputy, both may be sued jointly for such wrongful act. Waterhury v. Westervelt, 5 Selden, 598. 14. Of the parties to the action, those who are united in interest shall be joined as plaintiffs, or defendants ; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint ; and when the question is one of a common or general interest, of many 38 PARTIES TO AX ACTION. §15 persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. 1. The provisions of this section sustained. Von Schmidt y. Huntinrj1on,\ Cal., 55 ; Bouton V. CItij of Brookhjn, 15 Barb., 375 ; Kirk v. Yoitnij, 2 Abbott, 453. 2. In an action against defendants jointly indebted, where one only is served, a sev- eral judgment may be entered against him. Iljtghjield v. Franklin, 6 Cal., 607. 3. This provision is designed to provide for a cla.ss of cases which occur in equity, and is a mere recognition of a rule administered by courts of equity, and not to break in upon any rule of the common law. Andrews v. Moh-lumne HitI Co., 7 Cal, Jan. T., ib., April T. 4. All the parties liaving a part interest in the sul)ject matter should he joined as plaintiffs, hut the defect must be taken ^advantage of by answer or apportionment of damages, where it does not appear on the face of the complaint. Wliitney v. Stark, 7 Cal., Oct. T, 5. When a party rents property from another, and there arc adverse claims to the rent, he should file his bill against all adverse claimants therefor and offer to pay the rents into court to abide tlic ultimate decision as to the party entitled to them. M'De- vilt V. Sullivan, 7 Cal., Oct. T. 15. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at th^ option of the plaintiff. 1 . This section is in derogation of the old rule of common law, that one or all, and not any intermediate numl)er, may be sued. Stearns v. Agiiirre, C Cal., 183. 16. An action shall not abate by the death, or other disability of a party ; or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death cr other disability of a party, the court on motion may allow' the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party ; or the court may allow the person to whom the transfer is made to be substituted in the action. 1. The provisions of Sees. 16 and 17 sustained in Brooks v. Ilatjer, 5 Cal., 281. 2. A suit abates by sentence to State's Prison. O'Brien v. Ihujan, 1 Duer, 664. 3. Leave of the court to continue an action under this section is always necessary. Johnson v. Williams, 2 Abbott, 229. 17. The court may determine any controversy between parties be- fore it, when it can be done without prejudice to the rights t)f others. §18 PLACE OF TRIAL. 39 or hj saving their rights ; but when a complete determination of the controversy cannot be had without the presence of other parties, the court shall order them to be brought in. 1. A court of equity will not permit litigation by piece-meal. The whole subject matter and all the parties should be before it, and'their respective claims determined once and forever. Wilson v. Lassen, 5 Cal., 114. 2. When a husband sues to recover a homestead, and the wife does not appear in the action, the court should order her to be brought in, so that a final decree may be bind- ing upon them. Mai/.s v. Mars/i, 8 Cal., Jan. T. TITLE II. OF THE PLACE OF TRIAL OF CIVIL ACTIONS. («) 18. Actions for the following causes shall be tried in the county in which the subject of the action or some part thereof, is situated, subject (o) Statutes of 1854,153; "Wood's Digest, 2.39, Art. ISf* <^ •«-^: rt to «/: An Act relative to transferring actions and proceedinr/s from one com passed May 6, 1854. 1. If an action or proceeding is commenced or pending in a coiu-t as is hereinafter mentioned, and the judge or justice thereof is by law discpialified from acting as such, or if for any cause the court orders the place of trial to be changed, it shall be trans- ferred for trial to a court the parties rnay agree upon, by stipulation in writing or made in open court and entered in the minutes ; or, if they do not so agree, then to the near- est court where the like objection or cause for making the order does not exist, as follows : 1st. If in the district court, to another district court. 3d. If in a county court, to a district court, or some other county court. 4th. If in the probate court, to a district court, or some other probate court. 5th. If in a justice's court, to another justice's court in the same county. 2. When an order is made transferring an action or proceeding for trial, the clerk of the court, or justice of the peace, shall transmit the pleadings and papers therein to the clerk or justice of the court to which it has been transferred. If the transfer is made on the ground that a judge or justice is disqualified from acting, the cost and fees thereof, and of re-entering and filing the pleadings and papers anew, are to abide the event of the action or proceeding ; in other cases they are to be paid by the party at wliose instance the order is made. 3. The court to which an action or proceeding is transferred, shall have and exer- 40 PLACE OF TRIAL. §18 to the power of the court to change the place of trial, as provided in this act : 1st. For the recovery of real property, or of an estate, or interest cise over the same, the like jurisdiction as if it had been originally commenced there- in, and may by order or execution enforce the judgment. 4. In an action or proceeding transferred from a probate court, or brought to recov- er the possession of lands or tenements, (excepting it be in a justice's court) after final judgment th(rein, the clerk of the court in which it is heard shall certify under his seal of office, and transmit to the court from whence it is transferred, a full transcript of the j)rocee(lings and judgment. The clerk receiving such transcript, shall docket and record the judgment in the records of his court, briefly designating it as a judgment transferred from court, (naming the proper court). ."). On transferring causes, the following and no other fees and costs shall be allowed to tlie clerks of the court : for transmitting the pleadings and papers of a cause, the sum of two dollars ; for re-entering and filing the same pleadings and papers anew, three dollars ; for certifying and remitting a transcript and judgment, when retpurcd to be done under this act, five dollars ; for docketing and recording a transcript and judg- ment, when rciiuircd to be done under this act, five dollars. The last two items may be taxed in favor of the successful party, and made a part of the judgment against the other party, or otherwise ordered paid, as the court hearing the action or proceeding may, b}- its order or judgment, direct. (j. If an action or proceeding is transfen-ed to a justice's court, the justice receiving it shall, tiirce days before he proceeds to the trial thereof, unless the parties stipulate, in writing, to waive such notice, cause therein a notice in writing, to be served on the parties, which notice shall inform them of the time and place of trial ; in other cases the action of proceeding shall proceed in the manner provided for by law in such actions or proceedings. Statutes of 1855, 80; Wood's Digest, 250, Aut. 1379. An Act to provide for cprtifi/inrj and removimj certain cases from the courts of this State to the United States Circuit Courts, and to remove by writ of error certain casts from the Supreme Court oftliis State to the Sujireme Court of the United States. Passed April 'M, 1855. 1. If a suit be commenced in any court of this state, against an alien, or by a citi- zen of this state against a citizen of anotiier state, and the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of the court, and the defendant shall, at the time of entering his appearance in such court of this state, file a i)etition for the removal of the cause for trial into the next circuit court of the United States, or district court of the United States, hav- ing the powers and jurisdiction of a circuit court, to be held in the district where the suit is pending, and otfer good and sufficient surety for his entering in such court, on the first day of its session, copies of said |)rocess against him, and also for his there a|)pearing and enter- §18 PLACE OF TRIAL. 41 tlicroin, or for the determination, in any form, of such right or inter- est, and for injuries to real property : 2d. For the partition of real property : 3d. For the foreclosure of a mortgage of real property. 1. 1st. The county where tlie hind or sonic part tliercof is sitnatctl, is tlie proper place of trial to procure a decree tliat tlie conveyance of the hind was fraudulent. — Wood V. Hollister, 3 Abbott, 14. 2. 3d. Vullejox. Randall, b C-A.yA&l. ing special bail in the cause, if bail was orif^inally requisite therein, it shall tlicn be the duty of such court of this state to accept the surety and proceed no further in the cause ; and all subsequent proceedings which may be taken or had in such court in con- travention of the provisions of this section, shall be void and of no force or effect for any purpose whatsoever. 2. A final judgment or decree in any suit in the highest court of law or equity of this state in wiiich a decision of the suit could be iiad, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity ; or where is drawn in question the validity of a statute of, or an authority exercised under this state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of such, their validity ; or where is drawn in question the construction of any clause of the constitution of the United States, or of a treaty, or of a statute of, or com- mission held under the United States, and the decision is against the title, right, privi- lege, or exemption specially set up or claimed by either party, under such clause of the said constitution, treaty, statute or commission, may be removed by writ of error to and be re-examined and reversed or affirmed in the supreme court of the United States in the manner prescribed by the laws of the United States ; and upon tlie issuance and service of such writ of eiTor, the chief justice or any judge of the court, renderinn- or passing the judgment or decree complained of, upon being applied to by the plaintiff in error, or his attorney, sliall sign the requisite citation to the adverse party. 3. After a final judgment shall have been rendered in any suit in the highest court of this state, if the party against whom the decision may have been given, shall within ten days thereafter file notice, in writing, with the clerk, of his intention to remove the cause by writ of error, to the supreme court of the United States, and shall offer suffi- cient security, to be approved by the judge of the supreme court, or any district court of this state, for the prosecution of such writ of error, it shall be the duty of the said court in which such final judgment was rendered, or any judge thereof at chambers, to stay all proceedings for such time not exceeding four months, to be fixed by the said court or judge, as will be sufficient to enable such party to apply for and sen'C his writ of error in the mode prescribed by the laws of the United States, and upon the receipt of such writ of error the clerk of the court in which the record may be, and to which the writ may be directed, shall make return thereto, and send up the record or a tran- script, without the necessity of any other or further order or authority whatsoever. 4. If any judge, clerk, or other officer of any court of this state, shall knowingly and voluntarily act in contravention of the provisions of this act, he shall be deemed guiltv of a misdemeanor in office and liable to impeachment and removal from office. 1) 42 PLACE OF TRIAL. §19 19. Actions for the following causes shall be tried in the county ■where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial : 1st. For the recovery of a penalty or forfeiture imposed by statute ; except, that when it is imposed for an offense committed on a lake, river, or other stream of water situated in tAvo or more counties, the action may be brought in any county bordering on such lake, river, or stream, and opposite to the place where the offense was committed : 2d. Against a public oflBcer or person especially appointed to exe- cute his duties, for an act done by him in virtue of his office, or against a person who, by his command, or in his aid, does anything touching the duties of such officer. 1. An action by the people and prosecuted by the attorney general is within the second subdivision of this section. — People v. Hayes, 7 How. Pr., 248. 2. It is upon trial that the objection to the renuc must be raised, and the omission of the defendant to raise it then must be regarded as a waiver by which he is concluded. —Ilowland v. WiUctls, 5 Sand., 219. 20. [1858.] In all other cases, the action shall be tried in the county in which the defendants or any one of them may reside at the commencement of the action ; or, if none of the (?^/(?n(?aH^s reside in the state, or^ if residinij in tJiis state, the county in which they so reside be unknown to the plaintiff , the same may be tried in any county which the plaintiff may designate in his complaint ; and if any defendant or defendants may he about to dejmrt from the state, such action may he tried in any county tchere either of the parties may reside, or service he had, subject, hoAvever, to the power of the court to change the place of trial, as provided in this act. 1 . In an action of the nature of quo warranto, tlic place of trial may properly be laid in any county of the state. — People v. Cofjk, 6 How. Pr., 448. 21. The court may, on motion, change the place of trial in the following cases : 1st. When the county designated in the complaint is not the proper county. 2d. When there is reason to believe that an impartial trial cannot be had therein. 3d. "When the convenience of witnesses and the ends of justice •would be promoted by the change. §21 PLACE OF TRIAL. 43 4th. "\Yhon, from any cause, the judge is disqualified from acting in the action. 1. An appeal docs not lie from an order granting a change of vcnnc. — Juan v. In- goJdshtj, 6 Cal., 4.39. 2. Tlie demand for change of venue after-an answer, may be disregarded. — MiUi- (jan V. Brophij, 2 Code R., 118. 3. The demand may be made simultaneously with the service of an answer. — Mairs V. Remsen, 3 Code R., 138. 4. In general, all the defendants should unite in making tlie motion. — Saill;/ v. Hutton, 6 Wend,, 508 ; Lerjc/ v. Dorsheim, 19 ib., 700 ; Wclliit'j v. Sweet, 1 How, Pr., 156 ; Simmons v. McDougall, 2 ib., 77. 5. There is no distinction between the terms " venue" and " place of trial." — Ilinch- man v. BntJer, 7 How. Pr., 462. 6. 1st. After answer is filed it is too late to raise objections as to venue m the county. — Tooms v. Randall, 3 Cal., 438 ; Reyes v. Sanford, 5 ib., 117 ; Pearkcs v. Freer, 8 Cal., April T. 7. 2d. The granting of a change of venue is discretionary with the court below, subject to review only in cases of gross abuse. The affidavits should state sufficient facts to draw from the court its own inference as to the impartial trial. — Sloan v. Smith, 3 Cal., 410. 8. 3d. In an affidavit for change of venue, the defendant must swear that earh and and every one of the witnesses above named ; all and every one is bad. — Harris v. Clark, 2 How. Pr., 82 ; Mills v. Adsit, ib., 83. 9. In an affidavit for a motion to change the venue, the town as well as the county in which the witnesses reside must be stated. — Westbrook v. Merritt, 1 How. Pr., 195 ; Cook V. Finch. 2 ib., 89 ; Van Auken v. Stewart, ib., 181. 10. The venue will not be changed where there are witnesses at the place, as well as witnesses abroad, unless there is great necessity. — Austin v. Hinckley, 13 How. Pr., 576. 11. 4th Where the judge is disqualified to sit in a cause by reason of consanguinity to one of the parties, he cannot sit even by consent of both, and if he do, the judgment will be vacated. — Oakley v. Aspinivall, 3 Corns., 547. 44 SUMMONS. {>22 TITLE III. OF THE MANNER OF COMMENCING CIVIL ACTIONS. («.) 22. [185").] Civil actions in the district courts, (i) and the county (a) Statutes of 1854, 194; Wood's Digest, 249, Art. 1377. An Act prescribhifi the Tnanner of rommencinfj and maintainiiKj suits hi/ or atjaiiiftt couDties, paused MuijW, 1854. 1. Suits against a county may be commenced in an}' court of that county, or in a district court of the judicial district in which such county is situated, in the same manner as suits against private persons ; provided, that suits between counties shall be com- menced in a court of competent jurisdiction, in any county not a party to such action. 2. In counties where there is a board of supervisors, having an acting chairman or president of sucii board, the original process and papers shall be served on such chair- man or president, in the same manner as upon private persons ; when there is no sucii chairman or president, they shall in like manner be served on the county judge of tho county. 3. Immediately on the service of such process it shall be the duty of the officer so served, to deliver such process, and all papers accompanying the same, to the district attorney for such county, whose duty it shall be to defend such cause or proceeding on the part of such county, until final judgment or compromise of such suit or proceeding. 4. Suits brought for or against a county, shall be by or in the name of such county. Statutes of 1855, 56, ^24 ; Wood's Digest, 696, Art. .3333. 24. No person shall sue a county in any case, or for any demand, unless lie or she shall first present his or her claim or demand to the board of supervisors for allowance ; and if tliey fail or refuse to allow the same, or some part thereof, the party feeling ag- grieved may sue the county ; and if the party suing recover in the action more than said board allowed or offered to allow, said board shall allow the amount of the said judgment and costs as a just claim against the county ; but if the party suing shall not recover more than the board shall have offered to allow him or her, then costs shall be recovered against him or her by the county. All claims for services and items of ac- count of a similar nature, presented by any one person to the board of supervisors at any session of the board, shall be included in one account, and so considered b}- the board, unless by consent of the board. 1. The provisions of these statutes sustained in Price v. Sarrametito rounti/, 6 Cal., 255; (lilinan v. Contra Costra coiinfi/, ib., 670; McCann v. Sierra coiinti/, 7 Cal., Jan. T. ; Placer count;/ v. .t.s7//(, ib., Oct. T. 2. These statutes were passed to obviate the decision of Iliinsacker v. Bordm, 5 Cal., 288. (l>) The superior court of San Francisco city abolished. — Statutes of l8o7, 128. §24 SUMMONS. 45 courts, shall be commenced bj the filmg of a complaint with the clerk of the court in which the action is brought, and the issuing of a sum- mons thereon. Provided, that after the fihng of the complaint, a de- •fendant in the action may appear, answer or demur, whether the summons has been issued or not, and such appearance, answer or demurrer, shall be deemed a waiver of summons. 1. Where a summons was issued and served in the morning, by wliich the- defend- ants were cited to appear and answer the complaint in the court of First Instance, at 10 o'clock, and judgment was rendered against them at 9 o'clock on the morning of the same day : held, that the judgment was irregular, and should be reversed, notwithstand- ing the court offered them permission to come in at a subsequent day, and make their defense. — Parker x. Shfjihard, 1 Cal., 131. 2. In the absence of any statute to that effect, the state cannot be sued, and a judg- ment against it, is erroneous. — People \. Talmafje, 6'Cal., 256 ; Meyer v. E>ylish,8 Cal., Jan. T. 3. Lodging the summons with the sheriff with intent that it should be served, is suf- ficient. — Gregory v. Wiener, 1 Code K., N. S., 210. 23. The clerk shall endorse on the comjjlaint, the day, month, and ■/ f/^// year the same is filed ; and at any time after ihe filing, the plaintiff — ■ may have a summons issued. The summons shall be signed by the clerk, and directed to the defendant, and be issued under the seal of the court. 24. [1854.] The summons shall state the parties to the action, the court in Avhich it is brought, the county in which the complaint is filed, ^_^^ Sf Y /■ and require the defendant to appear and answer the complaint within .^ /f/~^_i<5 the time mentioned in the next section, after the service of summons, ,,^ exclusive of the day of service, or that judgment by default will be taken against him, according to the prayer of the complaint, briefly stating the sum or other relief demanded in the complaint. 1. If the summons be radically defective, it will not support a judgment by default. —The State v. Woodlief, 2 Cal., 241. 2. A default admits every issuable fact stated in the complaint. — Harlan v. Smith, 6 Cal., 173. 3. Where a defendant is sued as James, seiwice was returned upon John, and judg- ment entered against J. : held, to amount to error, unless the i)crson served is shown to be the person sued. — Sutter v. Cox, 6 Cal., 415. 4. A judgment rendered upon irregular process can be attacked dii:ectly, but not collaterally. — Whitwell v. Barhler, 7 Cal., Jan. T. ; Doreiite v. Sullivan, ib. 5. In an action where the complaint alleges fraud, the summons must apprise the defendant that upon a fiiilure to answer, the judgment will be taken against him for •-^ / "oU 46 SUMMONS. §25 fraiul, or it will not warrant a judgment by default embodying this charge. — Porter v. Ilvrmaun, 7 Cal., Oct. T. 6. The court may permit a summons to be amended. — McDonald v. Walsh, 5 Ab- bott, G9. 25. The time in which the summons shall require the defendant to answer the complaint, shall be as follows : 1st; If the defendant is served within the county in which the action is brought, ten days. 2d. If the defendant is served out of the county, but in the district in which the action is brought, twenty days. 3d. In all other cases, forty days. 1. A judgment will be reversed on appeal, rendered before the time of answering has expired. — Burt v. Scrantom, 1 Cal., 416. 26. There shall also be inserted in the summons a notice, in sub- stance as follows : 1st. In an action arising on contract for the recovery only of money or damages, that the plaintift' will take judgment for a sum specified therein, if the defendant fail to answer the complaint. 2d. In other actions, that if the defendant fail to answer the com- plaint the plaintiff will apply to the court for the rehef demanded therein. 1. A mistake in the form of a summons is waived by the unconditional appearance of the defendant.— Z)/x V. Palmer, 3 Code R., 214 ; 5 How. Pr., 233. 2. The causo of action stated in the complaint should control the form of the notice in the summons. — Voorhies v. Scojield, 7 How. Pr., .51. 3. In an action for 1)roach of promise of marriage, the summons should state that in default of answer, the party would apply to the court for the relief demanded. — Da- vis V. Bates, 6 Abbott, 15. 27. In an action affecting the title to real property, the plaintiff at the time of filing the complaint, or at any time afterwards, may file with the recorder of the county in which the property is situated, a notice of the pendency of the action, containing the names of the parties, the object of the action, and a description of the property in that county affected thereby. From the time of filing only, shall the pendency of the action be constructive notice to a pui'chaser or incumbrancer of the property affected thereby. 28. [1854, 1855.] The summons shall be served by the sheriff of ^9 5 2. . §29 SUMMONS. 47 the county -wliere the defendant is found, or by his deputy, or by a person specially appointed by him, or appointed by a judge of the court in which the action is broutht, or by any white male citizen of the United States over twenty-one\ears of age, who is competent to be a witness on the trial of the actima, except as hereinafter provided ; a copy of the complaint, certified by the clerk, shall be served with the S-*^ SZ-T^^Z, summons. When the summoiys shall be served by the sheriff or his ''/ ^_££f^ deputy, it shall be returned witll the certificate or affidavit of the officer, of its service, and of the service\)f the copy of the complaint, to the office of the clerk, from which th^ summons issued. AVhen the sum- mons is served by any other jwson as before provided, it shall be re- turned to the office of the clep: from which it issued, with the affidavit of such person of its service,\and of the service of a copy of the com- plaint. If there be more thamone defendant in the action, and such defendants reside within thre^ miles of the clerk's office, a -copy of the complaint need be served on only one of the defendants. See Sees. 646, 656. 1. The (late of the return of the shcritf is sufficient, if defendant's attorney acccepts service of the summons, and attached uo date thereto. — Crane v. Bra)maii,3 Cal., 192. 2. The object of a summons is to bring a party into court, and if that object be at- tained, there can be no injury to liim. — Smith v. Curtis, 7 Cal., April T. 3. It is doubtful whether a person served b\' the wrong name, and who docs not answer, can be bound by a judgment taken against him, by substituting tlie right name without notice. — lb. 4. The objection that a summons at the commencement of a suit is not properly served, is not available in an answer or demurrer, but only on motion to set tlie pro- ceedings aside. — Noi}es v. Hope Mutual Insurance Co., 5 How. Pr., 96. 5. A summons issued without mentioning the court from which it emanates, is de- fective. — Dix V. Palmer, 5 How. Pr., 23.3 ; James v. Kirlqmtrich, ib., 241. 6. The return of a sheriff or other person, of the service of summons, is not conclu- sive against a defendant. — Van Rensselaer v. Ckidwich, 7 How. Pr., 297. 7. Where the defendant is served with process by tlie plaintiff personally, he must take advantage of the irregularity bj' nioving to set aside the proceedings before judg" ment, otherwise his motion will be too late. — Myers v. Overton, 2 Abbott, 344. 29. [1854.] The summons shall be served by delivering a copy thereof, as follows : 1st. If the suit be against a corporation, to the president or other head of the corporation, secretary, cashier, or managing agent thereof. 2d. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother, or guardian ; or if there be none within the state, then to any person having the care or 48 PUBLICATION OF SUMMONS. §30 control of such minor, or with whom he resides, or in whose service he is employed. 3d. If against a person judicially declared to he of unsound mind, or incapahlc of conducting his own affliirs, and for whom a guardian has been appointed, to such guardian. 4th. In all other cases, to the defendant personally. 1 . Service of a summons upon an elector upon an election day, is a void service. — Mecks V. Noxon, 1 Abliott, 280 ; 11 How. Pr., 189 ; Bierce v. Smith, 2 Abbott, 411 ; Ilasthujn V. Farmer, 4 Corns., 296. 2. Service of summons on Sunday would be a void service. — Field v. Park, 20 John., 140. 3. A complaint must be personally served, and such service must be by delivering it to the defendant, or oft'erinp it to him within his reach, or laying it do\^ni within his reach. — Van Rensselaer v. Petrie, 2 How. Pr., 94. 4. 1st. Service against a corporation cannot be made upon a person in possession of the property, if not the president, head, secretary, or managing agent thereof. — Ai- ken V. Mariposa Quartz Rock Co., 6 Cal., 186. 5. The managing agent must be one whose agency extends to all the trans- actions of the corjjoration. — Brewster v. MicJii-h if prov- en will call upon the plaintiff to show himself to be a bona fide endorsee for value be- fore maturity, is not to be stricken out as sham because the defendant's affidavits do not fully deny the allegations of the plaintiff's affidavits setting out his title. — Wircj- mun V. Hicks, 6 Abbott, 17. 13. Irrelevant and redundant matter must be such as cannot be reached by demur- rer, and also prejudicial to the adverse party, to authorize it to be stricken out. — Wliite v. Kidd, 4 How. Pr., 58 ; Ili/nds v. Griswold, ib., 69. 14. Irrelevant and redundant matter stricken out of an answer because the matter could not in any way be made the subject, or form a part of a material issue in the ac- tion. — Williams v. Hayes, 5 How. Pr., 470 ; Lewis v. Kendall, 6 ib., 69 ; Rensselaer Plank Road Co. V. Wefsel, 6 ib., 68 ; Stewart v. Bouton, 6 ib., 71. 15. Irrelevant and redundant matter may be contained in a pleading which contains a good cause of action or defense. — Harlow v. Hamilton, 6 ib., 475. 16. No part of an answer ought to be stricken out which can in any event become material. — AveriU v. Taylor, 5 ib., 476. 17. An entire complaint cannot be stricken out as irrelevant or redundant on mo- tion. — Benedict v. Bake, 6 ib., 352. 18. Where a pleading is regularly served and within the proper time, though de- fective, so that the only question is upon its sufficiency, it cannot be disregarded as a nullity. — Strout v. Curran, 7 ib., 36. 19. A demurrer will not lie to a mere denial in an answer. It must contain new matter by way of defense. — Thomas v. Plumb, ib., 57 ; Loomisy. Dorshimer, 8 ib., 9 ; Simpson v. Loft, 8 ib., 234 ; Roosa v. Saugerties Co., 8 ib., 237 ; Reilay v. Thomas, 11 ib. 266 ; contra, Kneedler v. Sternbtirgh, 10 ib., 67. 20. The motion to strike out the entire answer as frivolous, is irregular. — Hall v. Smith, 8 ib., 149. 21. A demurrer to an answer not containing new matter constituting a counter claim, is a nullity, on which no judgment can be legally given for either partj\ — Richt- myer v. Haskins, 9 How. Pr., 481 ; ^fyatt v. Saratoga Mutual Ins. Co., ib., 488. 22. A decision for judgment on account of the frivolousness of the answer, is an order and not a judgment, but it is appealable. — Western R. R. Co. v. Kortright, 10 ib., 457. 23. Where an answer contained ^(fo defenses, and plaintiff moved for judgment for 64 VERIFICATION. §51 frivolousncss of answer, and one defense was held good and the other frivolous, litld, that the latter defense might be stricken out. — Uecker v. Mitchell, 5 Abbott, 454. I (r / /} ^^' -^^^''7 pleading shall be subscribed by the party or his attor- \^ -^ \iiey, and when tlic complaint is verified (a) by affidavit, the answer shall be verified also, except as provided in the next section. 1. The word "attorney" refers to the attorney at law, and not in fart. A pleading subscribed by an attorney in fact, without authority so to do, is void. — Dicey v. Pollock, 7 Cal., Oct.T. 2. An answer unverified to a verified complaint, may be stricken out on motion, and .application for a judgment as upon default may be made at the same time. — Drum V. Wlutiwi, 8 Cal., April T. 52. The verification of the answer required in the last section may J ii I' be omitted when an admission of the truth of the complaint niigffi; sub- ject the party to prosecution for felony, cr-r-^ ^-.-i^i-a. M^tt^^A-i^jrv'^, 1 . This provision sustained in — Drum v. Whiting, 8 Cal., April T. ; Blaisdell v. Rai/moncl, 5 Abbott, 144. 53. When an action is brought upon a written instrument, and the com])laint contains a copy of such instrument, or a copy is an- nexed thereto, the genuineness and due execution of such instrument shall be deemed admitted, unless the answer denying the same be verified. 1. In an action on a promissory note by a special endorsee against the maker, the plaintiff must prove at the trial the genuineness of the endorsements, although the de- fendant has not denied their genuineness under oath. — Grogany . Ruckle, 1 Cal., 158. 2. A party is not required to deny an endorsement under oath. — Youngsx. Bell, 4 Cal., 201. 54. When the defense to an action is founded upon a written in- strument and a copy thereof is contained in the answer, or a copy is annexed thereto, the genuineness and due execution of such instru- ment shall be deemed admitted, unless the plaintiff file with-j;he"Dlerk five days previous to the commencement of the term at which the action is to be tried, an aratfeViraciiying the same. (iu. 'w^v-o^-i^ o<- 55. In all cases of the verification of a pleading, the affidavit of -."p^ the party shall state that the same is true of his own knowledge, except V^'^ (a) In every action for a divorce, the complaint must be verified. — Slatutis of 1857, 240 ; Wood's Digest, 4"J1, Art. 2G40. §55 VERIFICATION. QS as. to the matters wliicli are therein stated on his information or bohef, and as to those matters, that he believes it to be true. And where a pleading is verified, it shall be bj the affidavit of the party, unless he be absent from the county where the attorney resides, 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 hj the attorney, or any other person except the party, he shall set forth in the affidavit the reasons why it is not made by the party. When a corporation is a party, the verification may be made by any officer thereof; or when the state, or any officer thereof in its behalf, is a party, the verification may be made by any person ac- quainted with the facts, -except that in actions prosecutecl by the attor- ney general in behalf of the state, the pleading need not, in any case, be verified. 1. The objection to the want of verification to tlie declaration should have been made either before answer or with the answer. It conies too late after answer. — Green- Jield V. Steamer " Gunnell," 6 Cal., 67. 2. Where the complaint is verified, it is no error to allow the defendant to verify his answer before trial, unless it is shown that the plaintitf is thei'eby taken by sui-prise. — Angier v. Masterson, 6 Cal., 61. 3. The verification of an answer may be omitted whenever the defendant would be excused from testifying as a witness to the truth of any matter denied by such answer. Drum V. Whiting, 8 Cal., April T. ; Blaisdell v. Raymond, 5 Abbott, 144. 4. "When from the nature of the facts alleged, it must be presumptively within the knowledge of the defendant, the answer should be positive one way or the other, and a denial according to recollection is evasive. Ana when the contrary is not presump- tively within his knowledge, then a d^niaj o^ all knowledge or information is hi^ffi- cient. — Hu umphreijs v. McCaU^J^CayL Jajl. T'l ; Curtis v. liichards, ib. 5. The word " belief" is/to be takcrt in its ordinary sense, and means the actual conclusion of the party drawn from information. Positive knowledge and mere belief cannot both exist together. — Humphreys v. McCall, 8 Cal., Jan. T. « 6. An affidavit verifying a pleading is defective in using the wgii^ "information and belief" instead of " information or belief." It may however be amended. — Davis V. Potter, 4 Hmv. Pr., 155. 7. An atSlnicy may verify in two cases ; when the action is founded on a written instrument itjiis possession, and when all the material allegations of the pleading are j within Iiis pc^mnal knowledge. — Masonw. Brown, 6 How. Pr., 481 ; Treadwell. v. Fas- ' sett, 10 ib., ^m. I 8. Wiieij'jHe verification is by the attorney he must set forth his knowledge or the j ground of hii»elief on the subject, and the reason why it was not made by the party. — Fitch Y.JBigMw, 5 ib., 237 ; Stannard v. Mattice, 7 ib., 4 ; People v. Allen, 14 ib., 334. 9. The enect and true construction of the oath is, that so far as the matters in the 66 VERIFICATION. §55 plcadinjT are M-ithin the knowledge of the party, they arc tnie, and as to the residue, he is either informed or l)elieves them to be true. — Truscott v. Dole, 7 ib., 221. 10. If the comphiint is improperly verified, the answer maybe pleaded without verification. — Wa(](jonery. Brown, 8 ib., 212. 11. If the verification of a pleading is deemed insufficient, the opposite party may test the question by omitting to verify his answer to it. — Strauss v. Parker, 9 ib., 342. 12. The verification by an attorney who has the note sued on in his possession, is sufficient. — Smith v. RoscntlutU, 11 il)., 442 ; contra. Meads v. Gleason, 1.3 ib., 309. 13. It should follow the language of the code in the essential form there given. — Tibballsy. Selfridge, 12 ib., 64. 14. In what cases a verification may be made by a person other than the party to a record. — Meads v. Gleason, 13 ib., 309. 15. If it be doubtful whether the verification be sufficient or not, it is better gene- rally to treat it as sufficient, and make no question about it. — Wilkin \. Oilman, 13 ib., 225. 16. In an action against husband and wife to set aside a deed of lands made to the wife by her father, the answer of the defendants should be verified by the wife as well as by the husband. — Youngsy. Seely, 12 ib., 39.5. 17. Where an answer to a complaint in an action against the maker and two en- dorsers of a promissory is verified by one of the defendants only, it is not sufficient ; each should verify his answer whether put in unitedly or separately. — Hull v. Ball, 14 ib.. 305. 18. The complaint and answer wore both verified by the respective attorneys, on information or belief, without stating the grounds, and both were held insufficient. The answer was allowed to stand. — Bank of Maine v. Buel, ib., 311. 19. A verified pleading must be construed so as to make all its parts, if possible, harmonize with each other. — Bi/le v. Uarrington, 4 Abbott, 421. 20. If the atlidavit merely states that the pleading is true, without stating that it is true to the knoichdf/e of the affiant, it is defective. Williams v. Riel, 5 Ducr, 601. 56. It shall not be necessary for a party to set fortli in a ])leading the items of an account therein alleged, but he shall deliver to the ad- verse party, within five days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court, or a judge thereof, or a county judge, may order a further account, when the one delivered is too general, or is defective in any particular. 1 . T.'ie party who is not satisfied with the bill should return it and move for another. It is too late to object at the trial. — Dennison v. Smith, 1 Cal., 437. 2. This account may be enforced by motion at any time before trial. — Yates v. Big- elow, 9 How. Pr., 18G. 3. An order for a bill of items, although accompanied by a stay of proceetlitigs, no longer operates of itself as formerly, to enlarge the time of the defendants to plead. — Piatt V. Townsend, 3 Abbott, 9. §60 MISCELLANEOUS PLEADINGS. 67 4. A plaintiff is not bound, in giving a bill of particulars, to furnish offsets or pay- ments which he has volunteered to credit defendant, in his eonipluint. — ]Vil/iamsy. Shaw, 4 Al)bott, 209. 57. If irrelevant or redundant matter be inserted in a pleading, it may be stricken out by the court on motion of any person aggrieved thereby. 1. On a motion to strike out, the papers should point out the precise parts at which the objections are aimed. — Benedict v. Dale, 6 How. Pr., 352. 2. This motion is not a substitute for demurrer. — Harhio v. Hamilton, G How. Pr., 475; Bementv. Wisner, 1 Code E.. N. S., 143. 58. In an action for the recovery of real property, such property shall be described, with its metes and bounds, in the complaint. 1. Where a declaration describes land by a certain name, this is as good a descrip- tion as one by metes and bounds, if it can be rendered sufificiently certain by evidence. — Castro V. Giil, 5 Cal., 40. 2. Actions for the foreclosure of a mortgage are not governed by this section.— Emeric V. Tarns, 6 Cal., 155. 3. A complaint defective in a proper description is demurrable. — Duff)/ v. Bradij, 4 Abbott, 432. 4. Actions to enforce a mechanic's lien are governed by this section. — Montrose v. Co;»ie/-, 7 Cal., Oct. T. fp '-^-^ -l^ fi- c^f^^i-^^L ^f^.z^i^ 59. In pleading a judgment, or other determination of a court or officer of especial jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be contro- verted, the party pleading shall be bound to establish on the trial the facts conferring jurisdiction. 1. It is a good defense to an action upon a judgment, whether brought by the orig- inal judgment creditor or his assignee, that the judgment was fraudulently obtained. — Dohson V. Penrce, 1 Abbott, 97 ; 2 Kern., 156. 60. In pleading the performance of conditions precedent in a con- tract, it shall not be necessary to state the facts showing such perform- ance ; but it may be stated generally that the party duly performed all the conditions on his part ; and if such allegation be controverted, the party pleading shall establish on the trial the facts- showing such per- formance. 1 . "When the declaration states a condition precedent, and fails to aver performance, the defect must be taken advantage of by demurrer. — Happe v. Stout, 2 Cal., 460. 68 MISCELLANEOUS PLEADINGS. §61 2. The allcn;ation that plaintiff fully performed on his part all conditions of his contract, is sufficiently explicit. — C'al. Steam Xav. Co. v. Wiiijht, 6 Cal., 258. 3. Where a right is to accrue upon the performance, it must be aveiTcd in order to recover. — Uotjers v. Cody, 7 Cal., Oct. T. 4. In a complaint upon a bond by defendant in an action, either for the delivery of property replevied, or the release of property attached, the conditions precedent of the bond must be set forth in the complaint. — Palmer v. Melvin, 6 Cal., 651 ; Nickerson v. Chatterton, 7 Cal., April T. 5. Where a person b\^ his contract engages to do an act, performance is not excused by an inevitable accident. Under an averment of performance of a covenant, evidence in excuse of non-perform- ance is inadmissible. A condition precedent must be strictly performed, to entitle a party to recover. — Oakley v. Morton, 1 Kern., 25. 6. Facts showing performance are to be stated ; not circumstances, which are mere evidence ; nor mere legal conclusions. — Hatch v. Pett, 23 Barb., 575. 61. In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title, and the day of its passage, and the court shall thereupon take judicial notice thereof. 62. In an action for libel or slander, it shall not be necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintifif of the defamatory matter out of which the cause of action arose ; but it shall be sufficient to state generally, that the same was pubUshed or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff shall establish on the trial that it was so published or spoken. 1 . When the words are charged to have been spoken of and concerning the defend- ant, as a clerk or tradesman, which it is alleged was his subsistence, it is unnecessary to allege special damage. — Butler v. Howes, 7 Cal., Jan. T. 2. The complaint, consisting in words not on their face libelous, must distinctly aver the extrinsic fact on whicli plaintiff relies to show the alleged libelous character of the words complained of, and it is not sufficient that this fact is alleged by way of innu- endo. — Caldwell v. Raymond, 2 Abbott, 193. 3. A statement of the tenor and effect of the words complained of, in an action for slander, is bad pleading. The words spoken should be stated. — Forsyth v. Edmistou, ib., 430 ; 5 Ducr, 653. 4. If the slander be spoken of a married woman, and the words be actionable per se, the husband and wife must join in tlie action ; if not actionable per sc, the husband must sue alone. — Klein v. Ilcntz, 2 Ducr, 633. 5. The jury are at liberty to give exemplary damages, if the evidence satisfies them that the defendant published the lii)el with intent to injure the character or feelings of the plaiutift", or to break up his business. — Dennett v. Fry, 4 Ducr, 247. §63 LIBEL OR SLANDER. 69 6. Several causes of action in slander cannot be united in the same complaint, un- less they are separateh' stated. — Pike v. Van Wormcr, 5 How. Pr., 171. 7. It is not irrelevant for the plaintiff to allege the facts which he would he allowed upon the trial to prove in support of his action. — Deijo v. BrumhviP, \:\ ih., 221. 8. The otTice of an innuendo is to connect the words, published or spoken, with the persons or facts, and extrinsic circumstances previously named, and set forth in the in- ducement, and to explain their apiilication thereto ; and being merely explanatory, can- not enlarge the sense of words, or supply or alter them when they arc dericicnt. — Blais- dell V. Raiimond, 14 ib., 265. 9. The time of uttering the slander, as alleged in the complaint, may be depart- ed from in evidence. Such a variance is wholly immaterial. — Potter v. Thompson, 22 Barb., 87. 10. It is not necessary to set out the whole of the obnoxious publication, but the pleader may extract only particular passages complained of, provided their sense be clear and distinct. — Culver v. Van Anden, 4 Abbott, 375. 11. Where the words alleged in a complaint for libel are fairly susceptil)le of a con- struction which would render them libelous, the complaint will be sustained n])on de- murrer, although the words may be interpreted in a way which would render them inno- cent. — Wesley v. Bennett, 5 ib., 498. 12. Where the answer contained, 1st, a denial of the publication, and 2d, matter in justification and excuse, and the plaintiff demurred to the answer for insufficiency, spe- cifying as grounds of demurrer objections only to the matter of justification and excuse, and judgment was given for the plaintiff on the demurrer; held, that the demurrer had Inference only to the portion of the answer objected to, and that by the judgment the denial of the publication was not struck out of the answer. — Matthews v. Beach, 4 Sold., 173. 63. In the actions mentioned in the last section, the defendant may, in his answer, allege both the truth of the matter charged as de- famatory, and any mitigating circumstances to reduce the amount of damages ; and whether he prove the justification or not, he may give in evidence the mitigating circumstances. 1. The defendant may prove, in mitigation of damages, facts and circumstances which disprove malice, although they tend to establish the truth of the defamatory charge. It is not necessary that the answer should allege the truth of tlie charge com- plained of, to entitle the defendant to aver and prove such facts and circumstances to reduce the amount of damages. — Bush v. Prosser, 1 Kern., 347. 2. Accordingly, where in an action for charging the plaintiff with kecjjing a house of ill-fame, the answer denied the complaint, and as a partial defense alleged lewd and las- civious conduct by the plaintiff's family, not amounting to a justification of the charge • held, that the evidence of such conduct was competent to reduce the amount of dam- ages. — lb. ; Anonymous, 6 How. Pr., 160 ; Ileaton v. JVri/jht, 10 ib., 79 ; T «» Benscho- ton v. Yaple, 13 ib., 97. 3. Where the defendant denies the charges in the complaint, he cannot set out in his answer matters in mitigation of damages, which do not constitute a defense to the ac- tion, or which could not be proven on the trial. — (I'raham v. Stone, 6 How. I'r., 15. 70 UNITING CAUSES OF ACTIOX. §G4 4. In plciulinp; a (1cfonf?e, mitip;atinjr circumstances may be alleged in justification, but not otherwise. — Graham v. Stone, ib.; Buddimjton v. Davis, ib., 401. 5. In slander an answer jitsti/i/iiifj the speaking of the words, must confess the speak- ing thereof. — Anibal v. Hunter, ib., 255 ; Ormshy v, DowjUis 2 Abbott, 407. 6. The defendant may prove the plaintiff's general bad character, in mitigation of damages, whether he justifies or not. — Sliks v. Comstorlc, 9 How. Pr., 48. 7. The defendant may allege, in his answer, the truth of the charge, in justification, and also fac-ls tending to prove its truth, in mitigation of damages. — Bisheij v. Shaw, 2 Kern, 67. 64, [1855.] The plaintiff may unite several causes of action in the same complaint, when they all arise out of — 1st. Contracts, expi-ess or imphed ; or, 2d. Claims to recover specific real property, with or without dama- ges, for the withholding thereof, or for waste committed thereon, and the rents and profits of the same ; or, 3d. Claims to recover specific personal property, with or without damages, for the withholding thereof ; or, 4th. Claims against a trustee by virtue of a contract, or by opera- tion of law ; or, 5th. Injin-ies to character ; or, Cth. Injuries to person ; or, 7th. Injuries to property. But the causes of action so united shall all belong to only one of these classes, and shall affect all the parties to the action, and not rc(|uire different places of trial, and shall be separ- ately stated. PnoviJed, however, that an action for malicious arrest and prosecu- tion, or either of them, may be united with an action for either an injury to character, or to the person. Consolidation of actions, see sec. 526. 1. If several causes of action arc improperly joined, tlic objection must be taken eitiier by demurrer or answer, or tlie olyeetion will be deemed to have l>cen waived. Macondrai/ v. Simmons, I Cal., 393. 2. Indebitatus assumpsit for rent will not lie in favor of a stranger for the purpose of trying his title ; or l)y one of two litigant parties claiming the land. This action de- pending not upon the validity of pluintift's title, but upon a contract expressed or im- ]^VKd.— Sampson v. Shaeffh; 3 Cal., 196. ."!. Tiie riglit to recover for use and occupation is founded on contract alone. — 0' Con- ner v. CorliitI, 3 Cal., 370. §66 UNITING CAUSES OF ACTION. 71 4. Value of property destroyed, and damages for the same, maj^ be joined. — Ttnde- sen V. Marshall, 3 Cal., 440. 5. A plaintitl" lias a riglit to waive a tort as against factors, and to bring his action to compel tiieni to account, and for the net proceeds arising from the sales. — Ltibert v. Cfiauviteau, 3 Cal., 458. G. Damages for a personal tort cannot be united with a demand properl}' cognizable in a court of cciuity. — Mayo v. Madden, 4 Cal., 27. 7. Plaintiff may sue for real property, damages for withholding it, rents and profits, in the same action. — Sullivan v. Davis, 4 Cal., 291. 8. It is improper to join an action of trespass, qtiare rlaiisitm fnyit, with ejectment and prayer for relief in chancery. — Biijelow v. Gove, 7 Cal., Jan. T. 9. A complaint containing several causes of action, all of which belong to one of the classes mentioned in this section, and affect all the parties to the action, and do not re- quire separate places of trial, cannot be demun-ed to on the ground that such causes of action are improperly united, merely because they are not separately stated. The rem- edy is by motion that the complaint be made more definite and certain, so as to sliow on its face what is relied upon as constituting a separate cause of action. — Ilursen v. Bayaud, 5 Duer, 656. 10. Distinct accounts between the same parties may be sued upon separately. — Se- cor V. Sturgis, 2 Abbott, 69. 11. Several causes of action arising on several judgments, may be joined in one ac- tion. — Bank of N. America v. Saydam, 1 Code R., N. S., 325. 12. A cause of action for malicious prosecution may be joined with a cause of action for slander. — ]]'utson v. Hazzard, 3 Code R., 218. 65. [1854.] '^Yev^ material allegation of the complaint, when it • '^ i /^/ is verified, not specifically controverted by the ansAver, shall, for^the purpose of tha action, be taken as true. The allegation of new matter in the answei-shall, on trial, be deemed controverted by the adverse party, as upon a direct denial or avoidance, as the case may require. 1. A general and sweeping denial in a verified answer is not sufRcient to controvert specifically eiLch material allegation of the complaint. — Deivey v. Bowman, 7 Cal., Julv T. ; Humphreys v. McCall, 8 Cal., Jan. T. 66. A material allegation in a pleading Is one essential to the claim or defense, and which could not be stricken from the pleading without leaving it insufficient. 1. An averment of copartnership is immaterial in a complaint, when the execution of the note sued on is not controverted, and becomes the material issue in the action. It is not essential to the claim. — WhitweU. v. Thomas, 8 Cal., April T. 2. Mayor of Albany v. Cunliff, 2 Coms., 165. 1i AMENDMENTS. §67 67. [1854.] After demurrer, and before the trial of issue on de- murrer, either partj may, within ten days, amend any pleading demur- ^^, ,r /^- i-ed to, of course, and without costs, filing the same as amended, and serving a copy thereof upon the adverse party or his attorney, who / ^6/^ shall have ten days to answer or demur thereto, if the pleading be a ■■ — complaint, or to demur thereto if it be an answer; but a party shall not so amend more than once. When a demurrer to a complaint is overruled, and there is no answer filed, the court may, upon such terms as shall be just, and upon payment of costs, allow the defendant to file an answer. If a demurrer to the answer be overruled, the facts allcii- cd in the answer shall still be considered as denied. 1. A i)lca(ling which does not admit of an answer cannot be amended under this section. — Plumb v. Whipples, 7 IIow. Pr., 411. 68. [1853.] The court may, in furtherance of justice, and on ^,„„J^, such terms as may be proper, amend any pleading or proceedings by J 2 ■ ' S . /^ adding or striking out the name of any party, or by correcting a mis- fi' V ;ii ^ take in the name of a party, or a mistake in any other respect, and may, upon like terms, enlarge the time for an answer or demurrer, or demurrer to an answer filed. The court may likcAvise, upon affidavit showing good cause therefor, after notice to the adverse part}', allow, upon such terms as may be just, an amendment to any pleading or pro- ceeding in other particulars ; and may, upon like terms, allow an an- swer to be made after the time limited by this act ; and may, upon such terms as may be just, and upon payment of costs, relieve a party //f aLl, or his legal representatives from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or ex- cusable neglect. When from any cause the summons and a copy of the complaint in an action have not been personally served on the defend- ant, the court may allow, on such terms as may be just, such defend- ant or his legal representatives, at any time within six months after the rendition of any judgment in such action, to answer to the merits of the original action. 1. The court may on trial amend hy addinj^ or striking out parties. — Acquital v. Crowell, 1 Cal., 191. 2. Groat latitude is given to the courts h)' our statutes in amending and altering pleadings. — Polorlc \. Iliint, 2 Cal., 193; CmJ: v. .'^jmirs, ib., 409 ; Slcanis v. Martin, 4 Cal., 227. //// §69 AMENDMENTS. 73 3. Tlic discovery of a fraud after suit hroiiglit, would entitle plaiutift'so to shape his action as to include it, — Truehody v, Jacobson, 2 Cal., 269. 4. An amendment should be allowed or directed to conform the pleadings to the facts which ought to be in issue, in order to enable the court to decree fully on the merits.— Conmi/Iei/ v. P(ck; 3 Cal,, 75 ; IJassed April 22, 1850. 1 . Every person confined in jail on an execution issued on a judgment, rendered in a civil action, sliall be discharged therefrom upon the conditions hereinafter specified. §73 ARREST AND BAIL. 75 1st. 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 credilors, or when the action is for willful injury to pgCS»m , fayghd i ga g t er,^ t6 property, knowing the property to belong to another. 2d. In an action for a fine or penalty, or for money or propert;^ em- bezzled, or fraudulently misapplied, or converted to his own use, by a public officer, or an officer of a corporation, or an attorney, factor, bro- ker, 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. 3d. In an action to recover the possession of personal property, un- justly detained, when the property, or any part thereof, has been con- cealed, removed, or disposed of, so that it cannot be found or taken b}' the sheriif. 2. Such person shall cause a notice in writing to be given to the plaintiff, his agent, or attorney, tliat at a certain time and place he will apply to the judge of the district court of tlie county in which such person may be confined ; or, in case of his absence, or inability to act, to the judge of the county court of the county in which such person mav be imprisoned, for the purpose of obtaining a discharge from his imprisonment. 3. Such notice shall be served upon the plaintiff, his agent, or attorney, one day at least before the hearing of the application, in cases where the plaintiff, his agent, or at- torney, lives within twenty miles of the place of hearing ; and one day shall l)e added for every additional twenty miles that such person may reside from the place of hearino-. 4. At the time and place specified in the notice, such person shall be taken before such judge, who shall examine him under oath concerning his estate, and property, and effects, and the disposal thereof, and his ability to pay the judgment for which he is committed ; and such judge shall also hear any other legal and pertinent evidence that may be produced by the debtor or the creditor. 5. The plaintiff in the action may, upon such examination, propose tp the prisoner any interrogatories pertinent to the inquiry, and they shall, if required by him, be pro- posed and answered in writing ; and the answer shall be signed and sworn to by the prisoner. 6. If, upon the examination, the judge shall be satisfied that the prisoner is entitled to his discharge, such judge shall administer to him the following oath, to wit : " I do solemnly swear that I have not any estate, real or personal, to the amount of fifty dol- lars, except such as is by law exempted from being taken in execution ; and that I have not any other estate now conveyed or concealed, or in any way disposed of, with de- sign to secure the same to my use, or to defraud my creditors, so help me God." 76 ARREST AND BAIL. §73 4th. When the defendant has been j^uilty of a fraud in contractuig the debt, or incurring the obhgation 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. 5th. AVhen the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. 1 . One partner cannot arrest another, suing to recover money. — Soule v. ITayward, 1 Cal., 345 ; Canj v. Williams, 1 Duer, 667. 2. A party will be discharged from arrest where the process, though proper in form, has been issued in an improper case. — Soule v. Iluijimrd, 1 Cal., 343. 3. The representations, if false or fraudulent, must precede the contract. — Snow v. Halstead, 1 Cal., 359. 4. In a suit to recover money received by a person as agent, he cannot be arrested without showing some fraudulent conduct on his part, or a demand on him by the prin- cipal, and a refusal on his part to pay. An arrest in such case is prohibited b}' section 15, art. I, of the constitution. — Ex parte Iloldforlh, 1 Cal., 438. 7. After administering the oath, the judge shall issue an order that the prisoner be discharged from custody, if he be imprisoned for no other cause ; and the officer, upon the service of such order, shall discharge the prisoner forthwith, if he be imprisoned for no other cause. 8. If such judge should not discharge the prisoner, he may apply for his discharge at the end of every succeeding ten days, in the same manner as above provided, and the same proceedings shall thereupon be had. 9. The prisoner after being so discharged shall be forever exempted from arrest or imprisonment for the same debt, unless he shall be convicted of having willfully sworn falsely upon his examination before the judge, or in taking the oath before prescribed. 10. The judgment against any prisoner, who is discharged as aforesaiarte Cohen, 6 Cal., 318. 5. Putting in and perfecting bail is a waiver of all defects in the affidavit. — Stewart V. Howard, 15 Barb., 26. 6. In the affidavit upon which an order of arrest is to be founded, two things must be made to appear ; that a sufficient cause of action exists, and that it is among those 78 UNDERTAKING ON ARREST. §76 specified in section 73. It is not sufficient for a party to state that "his case is one of those mentioned in section 73." He must state the facts. — Pindar v. Black, 4 How Pr., 95. 7. In an affidavit for the arrest of tiie defendant for fraudulently obtaining goods, the facts within the knowledge of the plaintiff must he stated positively. What is stated on information, should be set out particularly, and good reasons given why a positive statement cannot be procured. — WhitlocL- v. Roth, 5 ib., 143. 8. It is not necessary to state in the affidavit for an arrest, that a snmrnons has been issued. — Conklin v. Dutcher, 5 ib., 386. 9. Where the right to arrest the defendant is derived from the nature of the action c. g., in an action for embezzlement, the defendant will not be allowed upon a motion to discharge from an-est, affidavits to show that there is no cause of action. — Geller v. Seims, 4 Abbott, 103. 10. Where an order of arrest is granted on plaintiff's own affidavit, and a discharge is moved for solely on the original papers, the affidavit of plaintiff being uncontradicted is to be taken as true ; but it is to be strictly construed against plaintiff. The defend" ant was discharged from arrest on the ground that the allegations of the plaintiff's affi' davit, on which alone the arrest was ordered, were insufficient to establish an intent on the part of the defendant to defraud his creditors. — Ilathonie v. Hall, 4 Abbott, 227. 11. The affidavit must state the facts and circumstances to establish the grounds of the application for the arrest; stating the single fact that the defendant intends to depart from the State with intent to defraud his creditors, is not sufficient legal evidence. — Furman v. Walter, 13 How. Pr., 348. 70. Before making the order, the judge shall require a written undertaking on the part of the plaintiff, with sureties, to the eftect that if the defendant recover judgment, the plaintiff" will pay all costs and charges that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum speci- fied in the undertaking, which shall be at least five hundred dollars. Each of the sureties shall annex to the undertaking an affidavit that he is a resident and householder, or freeholder, within the State, and worth double the sum specified in the undertaking, over and above all his debts and liabilities, exclusive of property exempt from execution. The undertaking shall be filed with the clerk of the court. Sec Sec. 650. 1. A defective undertaking may be allowed to be amended, on motion to discharge from arrest. — Bellinger v. Gardner, 2 Abbott, 441. 2. The undertaking for an arrest need not be executed by the plaintiff personally. Asking V. I/canis, 3 ib., 184. 3. When a foreign state is a plaintiff, an undertaking accompanying an order of arrest signed and acknowledged I)y its resident minister on the part of the jilaintitf, is a valid undertaking within the provisions of the code. — licpahlic of Mexico v. Arrangoiz, 5 Duer, 634. §82 ORDER OF ARREST. 79 77. The order mav be made to accompany the summons, or any- time afterwards, before judgment. It shall require the sherift' of the county where the defendant may be found forthwith to arrest him and hold him to bail in a specified sum, and to return the order at a time therein mentioned to the clerk of the court in which the action is pending. 78. The order of arrest, with a copy of the affidavit upon which it is made, shall be delivered to the sheriff, who, upon arresting the de- fendant, shall deliver to him the copy of the affidavit ; and also, if desired, a copy of the order of arrest. 79. The sheriff shall execute the order by arresting the defendant and keeping him in custody until discharged by law. 80. The defendant, at any time before execution, shall be dis- charged from the arrest either upon giving bail, or upon depositing the amount mentioned in the order of arrest, as provided in this chapter. 81. The defendant may give bail by causing a written undertaking to be executed by two or more sufficient sureties, stating their places ' of residence and occupations, to the effect that they are bound in the amount mentioned in the order of arrest ; that the defendant shall at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein ; or that they will pay to the plaintiff the amount of any judgment Avhich may be recovered in the action. See Sec. 650. 1. The sheriff is bonnd to take bail provided they are sufficient. If lie refuses, he is liable. — Richards v. Porter, 7 John., 1.37 ; Dash v. Van Kleeck, ib., 477. 82. At any time before judgment, or within ten days thereafter, the bail may surrender the defendant in their exoneration, or he may surrender himself to the sheriff of the county where he was arrested. 1. Where a party offered to surrender himself in discharge of his sureties, held to be a good surrender, and a discharge of the sureties from all liability. — Allen v. Bres- luiier, 7 Cal., Oct. T. ; Bahb v. Oakley, 5 Cal., 93. 2. A judgment by defiiult will not authorize the entry of a judgment on the allega- tions of fraud, if the summons fail to apprise the defendant of this fact. — Porter v. Her- mann, 7 Cal., Oct. T. 80 SURRENDER BY BAIL. §83 83. For the purpose of surrendering the defendant, the bail at any time or place before they are finally charged, may themselves arrest him ; or by a written authority, endorsed on a certified copy of the undertaking, may empower the sheriff to do so. Upon the arrest of the defendant by the sheriff, or upon his delivery to the sheriff by the bail, or upon his own surrender, the bail shall be exonerated : Provided, such arrest, dehvery or surrender, take place before the expiration of ten days after judgment, but if such arrest, delivery or surrender be not made within ten days after judgment, the bail shall be finally charged on their undertaking, and be bound to pay the amount of the judgment within ten days thereafter. 1. The authority to arrest need not be signed bj all the bail. The authority of some is good. Ex-}Hirte. Titylor, 7 How. Pr., 212. 84. [1854.] If the bail neglect or refuse to pay the judgment within ten days after they are finally charged, an action may be com- menced against such bail for the amount of such original judgment. 1 . Bail are estopped from controverting the right of plaintiff to arrest. Gregory v. Levy, 12 Barb., GIO; 7 How. Pr., 37. 2. Sees. 83 and 84 fully discussed in Mutoun v. Etler, G Cal., 57. 85. The bail shall also be exonerated by the death of the defend- ant, or his imprisonment in a state prison ; or by his legal discharge from the obligation to render himself amenable to the process. 86. Within the time limited for that purpose, the sheriff shall file the order of arrest in the office of the clerk of the court in Avhich the action is pending, with his return endorsed thereon, together with a copy of the undertaking of the bail. The original undertaking he shall retain in his possession until filed, as herem provided. The plain- tiff, within ten days thereafter, may serve upon the sheriff a notice that he does not accept the bail, or he shall be deemed to have accept- ed them, and the sheriff shall be exonerated from liability. If no no- tice be served within ten days, the original undertaking shall be filed with the clerk of the court. 87. Within five days after the receipt of notice, the sheriff or defendant may give to the plaintiff, or his attorney, notice of the justi- fication of the same, or other bail, (specifying the places of residence §92 QUALIFICATION OF BAIL. 81 and occupations of the latter,) before a judge of the court or county judge, or county clerk, at a specified time and place ; the time to be not less than five, nor more than ten days thereafter, except by con- sent of parties. In case other bail be given there shall be a new undertaking. 88. The qualifications of bail shall be as follows : 1st. Each of them shall be a resident, and householder, or free- holder, within the county. 2d. Each shall be worth the amount specified in the order of arrest, or the amount to which the order is reduced, as provided in this chap- ter, over and above all his debts and habilities, exclusive of property exempt from execution ; but the judge, or county clerk, on justifica- tion, may allow more than two sureties to justify severally, in amounts less than that expressed in the order, if the whole justification be equivalent to that of two suflficient bail. ^ See Sec. 650. 89. For the purpose of justification, each of the bail shall attend before the judge or county clerk at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiif, touching his sufficiency, in such manner as the judge or county clerk in his discretion may think proper. The examination shall be reduced to writing, and subscribed by the bail, if required by the plaintiff. 90. If the judge or clerk find the bail sufficient, he shall annex the examination to the undertaking, endorse his allowance thereon, and cause them to be filed, and the sheriff" shall thereupon be exonerated from liability. 91. The defendant may, at the time of his arrest, instead of giving bail, deposit with the sheriff" the amount mentioned in the order. In case the amount of the bail be reduced, as provided in this chapter, the defendant may deposit such amount instead of giving bail. In either case, the sheriff" shall give the defendant a certificate of the de- posit made, and the defendant shall be discharged out of custody. 92. The sheriff" shall immediately after the deposit pay the same into court, and take from the clerk receiving the same, two certificates 82 DEPOSIT FOR BAIL. §93 of such payment ; the one of which he shall deliver or transmit to the plaintiff, or his attorney, and the other to the defendant. For any default in making such payment the same proceedings may be had on the official bond of the sheriff, to collect the sum deposited, as in other cases of delinquency. 93. If money be deposited, as provided in the last two sections, bail may be given, and may justify upon notice, at any time before judgment ; and on the filing of the undertaking and justification with the clerk, the money deposited shall be refunded by such clerk to the defendant. 94. Where money shall have been deposited, if it remain on de- posit at the time of the recovery of a judgment in favor of the plaintiff, the clerk shall, under the direction of the court, apply the same in sat>- isfaction thereof; and after satisfying the judgment, shall refund the Surplus, if any, to the defendant. If the judgment be in favor of the defendant, the clerk shall, under like direction of the court, refund to him the whole sum deposited and remaining unapplied. 95. If, after being arrested, the defendant escape or be rescued, the sheriff shall himself be liable as bail ; but he may discharge him- self from such liability, by the giving and justification of bail, at any time before judgment. 1. A sheriff cannot be allowed to allege error either in the judgment or process as an excuse for an escape. — Hutchinson v. Brand, 6 How. Pr., 73. 2. Where the bail given for the defendant upon his arrest arc excepted to and do not justify, and no other bail arc given, nor a deposit made, the sheriff becomes liable as bail. — Buchnan v. Cuniley, 9 How. Pr., 180 ; Sartos v. Mtrr<'tjues, 9 ib., 188. 3. The sheriff may as bail re-arrest the defendant without process. — Sartos v. Mer- ceques, 9 How. Pr., 188. 96. If a judgment be recovered against the sheriff, upon his liability as bail, and an execution thereon be returned unsatisfied in whole or in part, the same proceedings may be had on his official bond, for the recovery of the whole or any deficiency, as in other cases of delin(pxency. 97. A defendant arrested may at any time before the justification of bail, apply to the judge who made the order, or the court hi which §99 REPLEVIN. 83 the action is pending, upon reasonable notice to the pLaintiff to vacate the order of arrest, or to reduce the amount of bail. If the applica- tion be made upon affidavits, on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on Avhich the order of arrest Avas made. 1. A person once arrested and discharged cannot be re-arrcsted in the same action upon the same grounds. — McGilveri/ v. Morehead, 2 Cal., 607. 2. A motion to vacate an order of arrest must be made before the bail have justified if excepted to, or before the time to except expires. — Leu-is v. Tniesdell, 1 Code R., N. S., 106 ; Barker v. Dillon, ib., 206 ; Overill v. Durkee, 2 Abbott, 38.3 ; 12 How. Pr., 94 ; (jdffiip)/ V. Burton, 12 ib., .516. 3. On a motion to discharge if the judge is satisfied of the fraud, he should of course deny the motion. — Chaj)in v. Secley, 13 How. Pr., 490 ; Barron v. Sanford, 14 ib., 443. 98. If upon such application it shall satisfactorily appear that there was not sufficient cause for the arrest, the order shall be vacated ; or if it satisfactorily appear that the bail was fixed too high, the amount shall be reduced. CHAPTER II. CLAIMS FOR DELIVERY OF PERSONAL PROPERTY. 99. The plaintiff, in an action to recover the possession of personal property, may, at the time of issuing the summons, or at any time be- fore answer, claim the deUvery of such property to him, as provided in this chapter. 1. For verdict under this provision, see Sees. 200, 210. 2. "Where the original taking of personal property is tortuous, no demand is neces- sary — Ledleij v. Hai/s, 1 Cal., 160. 3. Where the taking is by an officer upon proper legal authority, a demand is neces- sary in order to make him liable in damages. — Daumiel v. Gorham, 6 Cal., 43 ; Taylor V. Seymour, ib., 512. 4. The bailee of an officer who has the property in the custody of the law, and who has receipted for the same to the sheriff, agreeing to deliver it on demand, cannot after- wards set up title to the property in himself. — Bleren v. Freer, 8 Cal., Jan. T. 5. Tiie measure of damages for property converted is the value thereof, with legal interest from the time of conversion, and when the value is fluctuating, the plaintiff may recover the highest value at the time of the conversion orat any time afterwards. — Doiujlass V. Kraft, 8 Cal., April T. 6. This i)rovisional remedy cannot be maintained against a party who has not in fact 84 AFFIDAVIT IX REPLEVIX. §100 or in law the possession or control of the property claimed. — Roberts v. Randel, 3 Sand., 707 ; 5 How. Pr., 327 ; Brockway v. Burnap, 12 Barb., 347; Drake v. Wakefield, 1 1 How. Pr., 106. 7. The jilaintift' must prove the lcf,'al title to be in himself, or a special property with a riyht to possession. — Dodwoiih v. Jones, 4 Duer, 201. 8. Tliis action abates if the defendant dies before verdict or judgment — Hopkins v. Adams, 5 Abbott, 351. 9. In an action where the defendant merely detains the property, a demand and re- fusal must be averred.— Fu//er v. Lewis, 3 Abbott, 383 ; 13 IIow. Pr., 219. 10 The defendant may answer by general denial, and set up a justification also. — Huckkij V. Oipnan, 10 How. Pr., 44. 11. This action is in the nature of the old writ of replevin. — Savage v. Perkins, 11 ib., 17. 12. A right of action for the wrongful taking, and conversion of personal property, is assignable. — McKee v. Judd, 2 Kern., 622 ; Fay v. Troy and Boston R. R. Co., 24 Barb., 382. 13. One tenant in common of personal property, cannot maintain rejjlevin against the other, to acquire possession. — Russell v. Alhn, 3 Kern., 173. 14. A party was in jjossession of a chattel without any title, when a creditor upon whose execution tlie sheriff had levied upon the chattel, and also after notice of tlie claim of the owner, indemnifies the siieritf against responsibility for a sale, and the sheriti' thereupon sells the i)roperty, this creditor is liable in an action by the owner for its value, although the execution in his favor was satisfied by a sale of other property previous to the sale of the chattel. — Ilerrin/j v. Iloppock, 15 New York R.,409. 15. Forwarding merchants who have made advances for prior charges on goods con- signed to them for transportation, have such an interest in the goods as entitles tliem to maintain this action against a third j)erson to whom the goods were wrongfully deliv- ered. — Fitzlim/h v. Wiman, 5 Sold., 559. 16. Tlie defendant may plead property in himself or in a stranger, or in any person other than j)laintiff. — Pattison v. Adams, liSilor's Supp., 426. 100. AMicre a delivery is claimed, an affidavit shall be made by the plaintiff, or by some one in his behalf, showing : 1st. That the plaintiff is the owner of the property claimed (partic- ularly describing it,) or is lawfully entitled to the possession thereof; 2d. That the property is wrongfully detained by the defendant ; 3d. The alleged cause of the detention thereof, according to his best knowledge, information and belief ; 4th. 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 so seized, that it is by statute exempt from such seizure ; and, 5th. The actual value of the property. 1. It is not necessary that the com])laint should corres])ond with the atlidavit as to §102 UXDERTAKIXt; IN REPLEVIN. 85 the iiunilicr and value of the articles claimed to be delivered. — Kcrrluan v. Bci], 10 How. Pr., 213. 2. A ;j;ciicral appearance by defendants is a waiver of any irrejjjnlarity in the affi- davits on wiiieh tlie re([uisition is founded. — ILjdc v. Patterson, 1 Abbott, 248. 101. [1854.] The plaintifi" or his attorney may thereupon by an endorsement in writing upon the affidavit, require the sheriff of" the county "where the property claimed may be, to take the same from the defendant. 1 . Tiie sheriff will, however, be liable to the owner who has his legal remedy against any one for the taking, unless it be by virtue of legal process against him. — Rhodes v. Patterson, 3 Cal., 469. 102. [1854.] Upon a receipt of the affidavit and notice, with a written undertaking, executed hy two or more sufficient sureties, ap- proved by the sheriff, to the effect that they are bound to the defendant in double the value of the property, as stated in the affidavit for the prosecution of the action, for the return of the property to the defend- ant, if return thereof be adjudged, and for the payment to him of such sum as may from any cause be recovered against the plaintiff, the sheriff shall forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. He shall also, without delay, serve on the defendant a copy of the affidavit, notice and undertaking, by delivering the same to him personally, if he can be found, or to his agent from whose possession the property is taken ; or if neither can be found, by leaving them at the usual place of abode of either, with some person of suitable age and discretion ; or if neither have any known place of a1)ode, by put ting them in the nearest post-office, directed to the defendant. See Sec. 650. 1. Where a replevin bond substantially conforms to the act, and no variation is pointed out, the assignees of the defendants can maintain an action upon it. — Wimjate v.Sroo/.A-, 3 Cal., 112. 2. In an action on the liond, the fact that defendant brought his action before an in. competent tribunal is no defense, and the plea that the title of property so reidevicd is in him, is bad. — McDermott v. Isbell, 4 Cal., 113. 3. If the judgment be not for a return of the property or damages for its value, the bond is not liable. — Chambers v. Waters, 7 Cal., April T. 4. The effect of this bond is not to divest either the title or tlie lien of the property from the other party ; it still remains in custodia/etjis to all intents and purposes. — l/iitit v. Robinson, 7 Cal., Oct. T. 86 UXDERTAKIXG IX REPLEVIX. §103 5. This bond is liable for a return of the propertj-, or for damages on a failure to return in whole or in part. — Ginaca v. Atvcood, 7 Cal'., Oct. T. 6. The sheriff must endorse his approval on the undertaking. — Burns v. RolLins, 1 Code R., G-2. 7. A bond may be filed nunc pro tunc when the one given in the first instance is de- fective. — Newlaiid V. WiUils, 1 Barb., 20 ; Manley v. Patterson, 3 Code R., 89. 8 "Where the defendant appears, he waives the irregularity of the issuing the writ without a clerk's name to it. — Legate v. LayriUe, 1 How. Pr., 13. 9. An assignee of the defendant in whose favor judgment is rendered, may main- tain an action upon the undertaking of plaintiff. — Bmcdoui v. Coleman, 3 Abbott, 431. 103. The defendant may, within two days after the service of a copy of the affidavit and undertaking, give notice to the sheriff that he excepts to the sufficiency of the sureties. If lie fails to do so, he shall be deemed tx) have waived all objection to them. When the de- fendant excepts, the sureties shall justify on notice in like manner as upon bail on arrest ; and the sheriff shall be responsible for the sufficiency of the sureties until the objection to them is either waived, as above provided, or until they justify. If the defendant ex- cept to the sureties, he cannot reclaim the property as provided in the next section. 104. At any time before the delivery of the property to the plain- tiff, the defendant may, if he do not except to the sureties of the ])laiu- tiff, require the return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the defendant. If a return of the property be not so recpiired within five days after the taking and service of notice to the defendant, it shall be delivered to the plaintiff, except as provided in section one hundred and nine. 1. This bond is assignable by the sheriff. — Wingatc v. Brooks, 3 Cal., 112. 2. In an action on this bond it must be alleged that the defendant neitlier re-delivcrcd the ]>roperty, nor paid the value thereof, as recited in the judgment. — yiickerson v. Chat- terton, 7 Cal., April T. 3. If tiic defendant has not excepted to the sufficiency of the sureties, and requires a return of the property, he must claim it within five days, or his right to a return is gone. — M'Cinin v. Tlwntpson, 13 IIow. I'r., 381. 4. The officer is estop|)ed by his return from denying that he had the goods in his possession. — Kn/ilmuu v. Orser, 5 Ducr, 242. §109 JUSTIFICATION OF SURETIES. 87 105. Tlio defendant's sureties, upon notice to the plaintiff of not less than two nor moi'e than five days, shall justify before a judge or county clerk, in the same manner as upon bail on arrest ; and upon such justification, the sheriff shall deliver the px'operty to the defend- ant. The sheriff shall be responsible for the defendant's sureties until they justify, or until the justification is completed or expressly waived, and may retain the property until that time ; but if they, or others in their place, fail to justify at the time and place appointed, he shall deliver the property to the plaintiff. 106. The qualification of sureties and their justification shall be such as are prescribed by this act, in respect to bail upon an order of arrest. 107. If the property, or any part thereof, be concealed in a build- ing or enclosure, the sheriff shall publicly demand its delivery ; if it be not delivered, he shall cause the building or enclosure to be broken open, and take the property into his possession ; and if necessary, he may call to his aid the power of his county. 108. When the sheriff shall have taken property, as in this chapter provided, he shall keep it in a secure place, and deliver it to the party entitled thereto, upon receiving his lawful fees for taking, and his neces- sary expenses for keeping the same. 109. If the property taken be claimed by any other person than the defendant or his agent, and such person make affidavit of his title thereto, or right to the possession thereof, stating the grounds of such title or right, and serve the same upon the sheriff, the sherifi" shall not be bound to keep the property, or deliver it to the plaintiff, unless the plaintiff, on demand of him or his agent, indemnify the sheriff against such claim, by an undertaking, by two sufficient sureties, ac- companied by their affidavits, that they are each worth double the value of the property as specified in the affidavit of the plaintiff, over and above their debts and liabilities, exclusive of property exempt from execution, and are freeholders or householders in the county ; and no claim to such property by any other person than the defendant or his agent, shall be valid against the sheriff, unless so made. See Sec. 650. 88 ixjuxcTiox. §110 110. [1854.] The sheriff shall file the notice, undertaking and affidavit, with his proceedings thereon, with the clerk of the court in which the action is pending, within twenty days after taking the prop- erty mentioned therein. CHAPTER III. IXJUNCTIOX. ^ /ihO. 111. An injunction is a writ or order, requiring a person to refrain from a particular act. The order or writ may be granted by the court in which the action is brought, or by a judge thereof, or by a county judge ; and when made by a judge may be enforced as the order of the court. 1. Almsc in injunction siiould be- j:;uar(lc(l against. — DeW'M v. //".ys, 2 Cal., 463. 2. An injiuu'tion operates to restrain not only the party enjoined but other courts on the ground of judicial comity. — hlmjcls v. Liihcrk, 4 Cal., 31, 3. Where parties can obtain ample relief in the court whose proceedings they wish to restrain, there is no reason for seeking an injunction in another tribunal, possessing only the same power. — Rickett v. Johnson, 7 Cal., July T. ; Revalk v. Kmemer, ib. ; Chijman v. lIMard, ib., Oct. T. ; Ulif/elder v. Levi/, 8 Cal., April T ; Pliehm v. Smith, 7 Cal., Oct. T. ; Bennett v.LeRoi/, 5 Abbott, 55 ; (irant v. Quick; 5 Sandf., 612. 4. An injunction is a mere remedial process and where the party obtaining it has also obtained a judgment ujion his cause, the court will not revise the propriety of granting the writ. — Hicks v. Lkivis, 4 Cal., 67. 5. An order of injunction whereby the bringing of an action is restrained, will be re- versed notwithstanding an injunction bond has been given. — King v. Half, 5 Cal., 82. 6. There is no prohibition to this grant of authority in the county judge, by the constitution, and the implication is decidedly otiierwise. — Th Ciil., 449; IJlatchford v. ^ar York and Xeic Haven R. R. Co., 5 Abbott, 276. 12. The destruction of water courses are such grievances as call for tlie eipiitable remedy by injunction. — Corning v. Troy Factory, 6 How. Pr., 89. §112 INJUNCTION. 89 13. An injunction cannot issue in an action for a breacli of covenant or agreement, restraining the defendant from carrying on a certain trade or profession within a certain time, in a certain place, where a certain sum as a penalty is named in the agreement, whether the defendant is solvent or insolvent. — Mncent v. J\in(j, 13 ib., 234. 14. An injunction to restrain an apprehended trespass, is never allowed, except un- der very special circumstances. — ^fth. Where the debtor has fraudulently conveyed, assigned, or other- ivise diposed of, oris about to fraudulently convey, assign, or otherwise dispose of his property or effects ivith the intent to hinder, delay or de- fraud his creditors ; 6th. Where the debtor has fraudulently coricealed, or is about to fraudulently conceal his property or effects, ivith the intent to hinder, delay, or defraud his creditors ; 1th. Where the debtor fraudulently contracted the debt, or incurred the obligation respecting which the suit is brougJit. 1. The remedy by attachment is not a distinct proceeding in the nature of an action in rem, but is auxiliary to the action at law. — Low v. Adams, 6 Cal., 277. 2. The assignment of a note as collateral security, is not a mortgage, but a mere pledge of the note, but its holder cannot attach ; the word " mortgage," upon personal property includes pledge. — Paijiie v. Bennlej/, 7 Cal., Oct, T. 3. If the writ of attachment issues before the summons, the former is a nullity — Low V. Hfinri/, 8 Cal., April T. 4. Where the defendant left New York State and went to Wisconsin to establish (a) The amendments go into effect after the 1st July, 18.58, and refer to contracts made after that date. y 94 AFFIDAVIT OX ATTACHMENT. §121 yi/.3^/ business, but intended, even if successful, to leave it in charge of a clerk and return ; held, that he was not a non-resident. — Hurlbut v. Sedey, 2 Abbott, 138 ; 1 1 How. Pr., 507. 5. Where a party has been attached as a non-resident, he may move to discharge the attachment on the ground of his being a resident, and the court will grant a refer- ence to ascertain the fact without an undertaking from defendant. — Killian v. Wu&liinij- toii, 2 Code K., 78. 121. [1853, 1858.] The clerk of the court shall issue the writ of / if^ C^ attachment upon receiving an aflfidavit by or on behalf of the plaintiflf, which shall be filed, showing : 1st. That the defendant is indebted to the plaintiflf z'w a eertain sum (specifying the amount of such indebtedness,) over and above all legal set-oflTs or counter claims, upon a contract express or implied, for the direct payment of money, and that such contract was made or is pay- able in this state, and that the payment of the same has not been se- cured by any mortcatge on real or personal property ; 2d. That the d ^melti» L>has good reason to believe, and does believe, mat one or more of the causes set forth in the several sub-divisions of the next preceding section actually exists at the time of making the affi- davit, reciting the facts upon ivhich such belief is founded. 1. Attachment only given in cases of indebtedness ."xrising out of contract. — Gris- wdcl V. Sharp, 2 Cal., 17. 2. The contract must be ma ^'*^ defendant, or any creditor of the defendant interested^ may file ~ a plea in the nature of a plea in abatement, nnder oath, puttinr/ in is- sue the truth of the facts alleged in the affidavit on zvhich the attachment was sued out. j /)//, 139. [1858.] Upon such issue the plaintiff shall he held to prove "/♦^r tv^i^ e^l^-JL v^k, 2 Ducr, 632. §144 JUDGMENT. 103 6. Tlie principle upon which a receiver of partnership property is appointed, is with the view of winding up the concern, and dividing tiic surplus, and not for the purpose of carr3Mng on the iiartnersliip business. — Jackson v. DeForest, 14 How. Pr., 81. 7. Upon a motion for the receiver, the merits arc not inquired into. It relates only to the preservation of the property in controversy. — Ch(ipmanv.IIa)nmerslei/,4 Wend., 173. 8. A receiver should apply for an order for leave to sue for a debt. — Merritt v. Lyon, 16 Wend., 410 ; Smith v. Woodruff, 6 Abbott, 65. 9. A receiver who has obtained authority from the court to sue, is not only author- ized but bound to proceed with his action, and he is not to be restrained by injunction out of anotluT court, or by making- him a party to a new action, and obtaining an in- junction against liim. — Wlnjidd v. Bacon, 24 Bai-b., 155. TITLE ^I. OF THE TRIAL AND JUDGMENT IN CIVIL ACTIONS. CHAPTER I. JUDGMENT IN GENERAL. 144. A judgment is the final determination of tlie rights of the parties in the action or proceeding, and may be entered in term or vacation. 1. By a final judgment is to be understood, not a final determination of the rights of the parties in the subject matter of the litigation, but merely of the particular suit. — BeltY. Davis, 1 Cal., 134. 2. A judgment rendered by a district court, after the time appointed by law for its adjournment, is invalid, and will be reversed on appeal. — Smith v. Chichester, 1 Cal., 409 ; Coffinhernj v. Horrill, 5 Cal., 493 ; Peahody v. Phelps, 7 Cal., Jan. T. ; Wicks v. Ludwiy, 8 Cal., Jan. T. 3. After the adjournment of term, the court cannot disturb its judgment except in cases prescribed by statute. — Baldwin v. Kramer, 2 Cal., 582 ; Morrison v. Dapman, 3 ' Cal., 255 ; Suydam v. Pitcher, 4 Cal., 280 ; Carpentier v. Bart, 5 Cal., 406 ; Robb v. Robb, 6 Cal., 21 ; Shaw v. McGregor, 7 Cal., Oct. T. 4. A judgment rendered without jurisdiction can be attacked directly or collaterally ; but if rendered upon irregular process, it can be attacked only by a direct proceeding against the judgment, in the court which rendered it, or on appeal. — Whiticell v. Barbier, 7 Cal., Jan. T. ; Dorente v. Sidlican, ib. 5. If an entire judgment be composed of several elements, and one or more of them is illegal, the whole judgment is void as against creditors. — Taaffe v. Josephson, 7 Cal., April T. J-^-i d -^^ St^f,,iy" — /^ (-<-r-r u"^<— ^, 'r<,; ^a*^ 104 JUDGMEXT. §14.") G. Knowingly taking a judgment for more than was due at the cntr}- thereof, is in itself conclusive evidence, in contemplation of law, of fraud. — ]h. 7. If a judgment is pronounced by a court having jurisdiction, no matter how irreg- ular v. may be, it miiit stand until set aside or reversed on appeal. But when entered by a mere ministerial officer, without autliority of law, it is wholly voitl. — Stearns v. Aguirre, 7 Cal., April T. 8. A motion in arrest of judgment may be made under the code. — Noxon v. Bentley, 7 How. Pr., 316. 145. Judgment may be given for or against one or more of sev- eral plaintiffs, and for or against one or more of several defendants ; and it may, -wlien the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves. 1 . Judgment rendered in favor of plaintiff against one defendant, and in favor of the other defendant against plaintirt". — Jion iiio.loii, :i;ul in one of the modes pointed out bv law, " by oral consent in open court, entered on the minutes." — Bates v. ]'isfur, 2 Cal., 355. 6. The above held not to apply to equity cases. — SmitJi v. Roice, 4 Cal., 6. 7. A referee appointed merely to take an account between two parties, differs mate- rially from a referee appointed in the stead of the court, to try and determine a cause, and an order setting aside his report is merely interlocutory and not the subject of ap- peal. — Johnston v. Dophins, 6 Cal., 83. 8. Where a referee admits the testimony of a witness against the olyection of the defendant, such testimony cannot, after the case has been subir itted, be thrown out with- out first giving to the adverse party the opportunity of otherwise supplying the excluded testimony. — Monson v. Cooke, 5 Cal., 436. 9. Referees have no power to allow parties to alter pleadings. — Ih. ; Bonesteel v. Lynde, 8 How. Pr., 226, 352. 10. Although parties may agree to a suitable person for a referee, the court must be satislied that the selection is a proper one. — Litchjield v. BurweU, 5 How. Pr., 341. 1 1 . An order to refer a cause brought to recover upon an account, is not an appeal- able order.— Uhsdellv. Boot, 3 Abbott, 142. 12. When a pai-ty proceeds to try a cause under an order of reference, he thereby waives any right to appeal from that order. — Ih. 183. When the parties do not consent, the court may, upon the appHcation of either, or of its own motion, direct a reference in the following cases : 1st. When the trial of an issue of fact requires the examination of a long account on either side ; in which case the referees may be di- rected to hear and decide the whole issue, or report upon any specific question of fact involved therein ; 2d. When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order intc effect ; §185 DISQIIATJFICATION OF REFEREES. 119 8d. When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action ; or, 4th. When it is necessary for the information of the court in a spe- cial proceeding. 1. Aption for balance of account, defense, payment hy a promissory note, replica- tion, that plaintiff was induced to receive the note by means of fraudulent ^representa- tions ; held, that the ca^e was not referable under the statute, without the written consent of both parties. — Seaman v. Mariani, 1 Cal., 336. 2. The court may order a reference to ascertain damages by an injunction issued without a cause. — Russell v. Elliott, 2 Cal., 245. 3. Damages for unlawful detainer is not subject to reference, unless by consent.-^ Geeseka v. Brannan, 2 Cal., 517. 4. A reference, in which there is no order of court, or agreement, filed or entered on the minutes, withdraws tlie cause from the jurisdiction of the court, and no judgment can be entered upon the report without consent. — Heslep v. Q'ti/ of San Frandsco, 4 Cal., 1. 5. An order of reference is not a final order of judgment to be appealed from. — Har- ris V. Clarl; 4 How. Pr., 78. 184. A reference may be ordered to any person or persons, not exceeding three, agreed upon by the parties. If the parties do not agree, the court or judge shall appoint one or more referees, not ex- ceeding three, who reside in the county in which the action or proceed- ing is triable, and against whom there is no legal objection. See Sec. 529. 1. The referees need not be sworn. — Sloan v. Smith, 3 Cal., 406. 2. A referee has no power to strike out a complaint, nor to punish for contempt. — Bonesteel v. Lynde, 8 How. Pr., 226, 352. 185. Either party may object to the appointment of any person as referee, on one or more of the following grounds : 1st. A want of any of the qualifications prescribed by statute to ren- der a person competent as a juror. 2d. Consanguinity or affinity within the tliird degree, to either party. 3d. Standing in the relation of guardian and ward, master and ser- vant, employer and clerk, or principal and agent, to either party ; or being a member of the family of either party ; or a partner in business with either party ; or being security on any bond or obligation for either party. 4th. Having served as a juror, or been a witness on any trial be- ween the same parties for the same cause of action. 120 TRIAL BY REFEREES. §186 5th. Interest on the part of such person in the event of the action, or in the main question involved in the action. 6th. Having formed or expressed an unijuaUfied opinion or belief as to the merits of the action. 7th. The existence of a state of mind in such person evincing enmity against, or bias to, either party. 186. The objections taken to the appointment of any person as ref- eree, shall be heard and disposed of by the court. Affidavits may be read, and any [)erson examined as a witness as to such o>)jcctions. 187. The referees shall make their report within ten days after the testimony before them is closed. Their report upon the whole issue shall stand as the decision of the court, and upon filing the report with the clerk of the court, judgment may be entered thereon, in the same manner as if the action had been tried by the court. The decision of the referees may be excepted to, and reviewed in like manner as if made by the court. When the reference is to report the facts, the report shall have the eflfect of a special verdict. 1 . The report of a referee upon the facts of a case will be considered the same as the verdict of a jury. — Walton v. Minturn, 1 Cal., 362 ; Goodrich v. The Mai/or of Ma- ri/sville, 5 Cal., 430. 2. The report of a referee must be objected to in a court below. — Porter v. Barlinp. 2 Cal., 72; Goodrich v. The Mmpr of Marpville, 5 C^al., 430. .3. It must be taken advantage of by moving to set it aside, as on motion for a new ti-ial. — ^loan v. Smith, 3 Cal., 406; Groj/sony. Guild, 4 Cal., 122. 4. The report of a referee should state the facts found, and conclusions of law there- upon. — Lambert v. Smith, 3 Cal., 408 ; Church v. Erhcn, 4 Sand., 691 ; !'(/« Steenhurgh V. Hoffman, 6 How. Pr., 492 ; Ihrninfj v. PoM, 1 Code R., 131 : .1//7/s v. Thursh,/. 12 How. Tr., 417. 5. The report of a referee is essentially the same as tJie award of an arbitration. — Grai/son v. Guild, 4 Cal., 122. 6. The supreme court, in a chancery case, will concct tlic errors of an eiToneous judgment on the report of a referee, or the erroneous setting aside of the same. — lb. 7. The correctness of the order setting aside the report of facts found by the referee, if it was questioned and excepted to, can be reviewed ujion appeal after final judg- ment. — McIIenry v. Moore, 5 Cal., 90. 8. A referee taking the place of a jury, if it appear the i-cport of a referee upon questions of fact has been aftected by any influence exercised by the successful party, it will be set aside for irregularity. — Yule v. Gvinits, 4 How. Pr.. 253 ; TJorlon v. Lewis, 9 ib., 1. 9. The referee has no authority to report tliat the defoulant is entitled to judgment §189 EXCEPTIONS. 121 of a dismissal of the complaint, nor to order an amendment of the pleadings, or change the issue wliich tlie court has set to be tried. — Holmes v. Shewn, 6 ib., 217. 10. The examination by the court of a report in reference. — Lakin v. New York and Erie R. R. Co., 11 ib., 412. 1 1 . When a new trial is granted from a judgment in the report of a referee, the case should be tried before a new referee. — Schermerhorn v. Van Alen, 13 ib., 82. 12. The manner in which decisions of referees should be excepted to and reviewed, fully discussed. — Johnson v. Whithch, 3 Kern., 344. 13. The court, under section 68, may allow exceptions to the report of a referee to be filed nunc pro tunc., after the time allowed. — Sheldon v. Wood, 14 ib., 18. CHAPTER VII. GENERAL PROVISIONS RELATING TO TRIALS. ARTICLE I. EXCEPTIONS. 188. An exception is an objection taken at the trial to a decision upon a matter of law, whether such trial be bj jury, court, or referees, and whether the decision be made during the formation of a jury, or in the admission of evidence, or in the charge to a jury, or at any other , time from the calling of the action for trial, to the rendering of the verdict or decision. But no exception shall be regarded on a motion for a new trial, or on an appeal, unless the exception be material, and affect the substantial rights of the parties. 1. "Where the court below tries the cause without a jury, the proper mode of re- serving questions of law, is to ask the court to decide them, an^. .Jf^ • §233 REDEMPTION. ' I 8 i ^ '. ^. Z^^. Ul paying the sum paid on such last rec]^tnption, with six per cent, thereon in addition, and the amoiuit of anVassessraents or taxes which the said last redemptioner may have pa/d thereon, after the redemption by him, with interest on such amoiint ; and the amount of any liens held by said last redemptioner prior to his own, with interest. Tlie prop- erty may be agahi, and as often as tlie debtor or any redemMtioner is so disposed, redeemed from any previoii^ redemptioner, within sixty days after the last redemption, on paying the sum paid on the last previous redemption, with six per cent, thereon in addition, and the amount or any assessments or taxes which the said last previous redemptioner paid after the redemption by him, ^mh interest thereon ; and the amount of any liens held by the said hist redemptioner, previous to his own, with interest. Notice of reckmption shall be given to the sheriif. If no redemption be made withia six months after the sale, the pur- chaser shall be entitled to a/^nveyance ; or if so redeemed, whenever sixty days have elapsed, /aid no other redemption has been made, and notice thereof given, thd time for redemption shall have expired, and the last redemptioner slmll be entitled to a sheriff's deed. If the debtor redeem at any time%efore the time for redemption expires, the effects of the sale shall be terminated, and he be restored to his estate. 1. A sheriff's deputy may execute a deed for property sold under execution, but lie must execute it in the name of the sheriif. If executed in his own name, it is decisive against the party claiming under it. — Lewes v. Tliomjison, 3 Cal., 266. 2. A mandamus will not lie against a sheriif to compel him to make a deed to land to a purchaser at execution sale ^^ho refuses to i)ay the purchase money, for the reason that he is the oldest judgment and execution creditor, and entitled to the money ; espe- cially when there is an unsettled contest as to the question of lien. — Williams v. Smith, 6 Cal., 91. 3. Under what circumstances and upon what terms a re-sale of property sold at a judicial sale will be ordered. — Lentz v. Craig, 2 Abbott, 294; Kiii the irregularity in the proceedings concerning the sale,. the judgment ^' ' ^^ may, by order of the court, upon notice to the judgment debtor, be revived, and a new execution issued for the price paid on the sale, with interest. Such judgment shall be a lien on the real estate of the judgment debtor, only from the time of its revival. CHAPTER II. PROCEEDINGS SUPPLEMENTARY TO THE EXECUTION. 238. When an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, issued to the sheriff of the county where he resides ; or if he do 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, shall be entitled to an order from a judge of the court, or a county judge, 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 rio judgment debtor shall be required to attend before a judge or referee out of the county in which he resides, when proceedings are taken under the provisions of this chapter. 1. These proeecdings are a substitute for a creditor's bill in the old practice. — Ad- ams V. Haf^kett, 7 Cal., Jan. T. 2. These provisions are not applicable to judgments against corporations — Hinds V. Canandaujua, R. R. Co., 10 How. Pr., 487 ; Sherwoodv. Buffalo R. R. Co., 12 ib., 136. 3. On application for the appointment of a receiver upon proceedings supplemen- tary to execution, the judgment debtor cannot object to the appointment on the groimd 144 SUPPLEMENTAEY PROCEEDINGS. §239 that tlic examination Iiiis not shown him to be tiie owner of the property. — Ex parte Myer, 2 Abbott, 476. 4. On the return of an order for an examination, the order may be dismissed on de- fendant's motion, if it appear to have been improvidentl} granted. — Curtois v. Harrison, 3 ib., 96. .5. A judgment debtor who appears pursuant to an order, and without objeetion sub- mits to an examination and omits to appeal from a subsequent order appointing a re- ceiver waives objeetion to the jurisdiction of the judge to take the examination and make the order. — Viburt v. Frost, ib., 119. 6. A person examined as a witness before a referee in a proceeding supplementary to execution is entitled to fees as a witness. — Davis v. Turner, 4 How. Fr., 190. 7. A person not a party to the judgments may be made a party to supplementary proceedings. — lb. 8. The judge has no authority under these proceedings to issue a commission to examine witnesses abroad. — Graham v. Colbum, 14 ib., 52. 9. A party examined is not entitled to a cross-examination, but he may have the advice and instruction of counsel in forming his answers. It is in the discretion of the court to direct the property of the judgment debtor to be apjjlied to the satisfaction of the judgment, or to appoint a receiver, or if the case require it, to do both. — Cornimj Tooker, 5 ib., 16. 10. The judgment debtor may be cross-examined. — Lnoij v. Ifalsii/, 1 Duer, 589. 239. [1854.] After the issuing an execution against property, and upon proof by affidavit of a party, or otherwise, to the satisfaction of the court or of a judge thereof, or county judge, that any judgment debtor has property "which he unjustly refuses to apply towards the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear at a specified time and place before such judge, or a referee appointed by him, to answer concern- ing the same ; and such proceedings may thereupon be had for the application of the property of the judgment debtor toward the satisfac- tion of the judgment, as are provided upon the return of an execution. Instead of the order requiring the attendance of the judgment debtor, the judge may, upon affidavit of the judgment creditor, his agent or attorney, if it appear to him that there is danger of the debtor ab- sconding, order the sheriff to arrest the debtor and bring him before such judge. Upon being brought before the judge, he may be ordered to enter into an undertaking with sufficient surety, that he will attend from time to time before the judge or referee, as shall be directed, during the pendency of proceedings, and until the final determination thereof, and will not in the mean time disjiose of any ])orti()n of his property not exempt from execution. In default of entering into such undertaking, he may be committed to prison. §24:1 SUPPLEMENTARY PROCEEDINGS. 145 1. The assignee of a judgment may institute supplcmentarv proecodings under the eodc, although the party ap|)lying became the assignee of the judgment after tlie exe- cution was returned unsatisfied. — Ex parte Oir, 2 Abbott, 457. 2. After an examination of judgment debtor had before a referee, has been once completed and closed, it cannot be re-opened except upon special order for that purpose. lb. 3. After a judgment creditor has had one complete examination of his debtor, he cannot institute a new examination as if it were the first, but must api)ly on notice and affidavits showing a special reason why a new examination should be had for an order for that purpose. — lb. 4. A witness examined on supplementary proceedings respecting property of the judgment debtor, is bound to answer all such questions as may be put concerning such property. He is not to be excused from answering because he sets up a claim to the property which is the subject of examination. — Sandfordv. Carr, 2 Abbott, 462. 5. The affidavit if not made by the judgment creditor, and does not state that the person making it was his agent or had any interest in the judgment, or any authority whatever, will not support the order although the deponent was the owner of the judg- ment. — Limkaij v. Sherman, 5 How. Pr., 308. 6. These proceedings may be commenced upon the proper return of the execution at any time within the time prescribed for the return. — Livingston v. Clmveland, 5 ib., 396. 7. There must be an execution issued and the same returned unsatisfied previous to the issuance of this order. — Saclett v. Neivton, 10 ib., 560. 8. It is not necessary that the debtor himself should be examined on oath, concern- ing his property. — Graves v. Lake, 12 How. Pr., 33. 240. After the issuing of an execution against property, any per- son indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as may be necessary to satisfy the exe- cution, and the sheriff's receipt shall be a sufficient discharge for the amount so paid. 1. The issuing of a second execution is not waiver of supplementary proceedings commenced after the return of the first execution. — Lilliendahl x. Fellennan, II How. Pr., 528. 241. After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, and upon proof by affidavit or otherwise, to the satisfaction of the judge, that any person or corporation has property of such judg- ment debtor, or is indebted to him in an amount exceeding fifty dollars, the judge may, by an order, require such person or corporation, or any officer or member thereof, to appear at a specified time and place, before him or a referee appointed by him, and answer concerning the same. 146 SUPPLEMENTARY PROCEEDINGS. §242 > 1. If it appears on examination of witnesses that a tl*"> / / 1 . Where the complaint does not charge the mortgagee in possession with negli- gence or improper conduct, in leasing the premises, but requires him to account for the rents he actually received, it is proper in the court to refuse to instruct the jury that he might have leased the property differently, and to charge him with what he might have received, if so leased. — Benham v. Rowe, 2 Cal., 387. 2. Where a power of sale is continued in a mortgage, and under a sale by virtue of such power, the mortgagee becomes the purchaser, the equity of redemption still at- taches to the property in favor of the mortgagor. In such case the mortgagor has a clear right to redeem — Ih. 3. The purchaser of a mortgage is subrogated to the rights of the mortgagee. — John- son V. Dopkitis, 3 Cal., 391. 4. A conveyance of real estate, conditioned to be void on the payment of a given sum of money on a given day, otherwise to be and remain in full force and virtue, is a mortgage and not a conditional sale. — Ferguson v. Miller, 4 Cal., 97. 5. An unrecorded mortgage has priority over a mechanic's lien, which attached subsequently to the execution of the mortgage, if the mechanic had notice thereof. — Rose V. Munie, 4 Cal., 173. "[See act passed 18.57-58, explaining the same.] 6. In an action of ejectment, brought by a purchaser at sheriff's sale, under a decree of foreclosure and sale of mortgaged premises, to recover the same against the mort- gagor in possession, the mortgagor is estopped from setting up title in another, as a de- fense to the action. — Redman v. Bellamy, 4 Cal., 247. 7. An action will not lie on the'mcre recital in a.mortgage of the existence of a debt. In an action upon a promise to p»y money, if the? complaint contains no averment of consideration, or of indebtedness except by way of recital, it is insufficient. — S/ia/er v. Bear River and Auburn Company, 4 Cal., 294. 8. A defendant can show on cross-examination that a mortgage has been satisfied, to contradict possession under a mortgage. — Ohenery v. Palmer, 5 Cal., 131. 148 FORECLOSURE OF MORTGAGES. §24(3 9. A mortgage is a mere incident to the debt whicii it secures, and follows the trans- fer of a note with the full effect of a regular assignment. — Orel v. McKee, 5 Cal., 515 ; Bennett v. Tai/Ior, 5 Cal., 502 ; Bennett v. Solomon, 6 Cal., 1.34 ; Phelan v. Olnei/, 6 Cal., 478. 10. A writ of assistance will lie to put purchaser under foreclosure, in possession. Wolfv. Fleischacker, 5 Cal., 244. 11. The appellate court will not disturb an amended decree for alleged irregularity, if it is what ihe original decree should have been. — Gronjier v. Minturn, 5 Cal., 492. 12. Five per cent, counsel fee is not in the nature of a penalty, but only a provision against actual expense. — Carn'ere v. Minturn, 5 Cal. 435. 13. The usual and best method in actions for a foreclosure, is to appoint a master to find and report the amount due. — Guy v. Franklin, 5 Cal., 416. 14. In entering a judgment, the correct rule is to add the interest due on the note up to the time of the judgment, to the principal, and enter the judgment for the gross amount, and such judgment is then to bear the same interest as the notes until paid, although it appears as compounding interest. — lb. ; Emeric v. Tarns, 6 Cal., 155. 15. Where a new note on tiie same terms, between the same parties, for the same sum and of the same date, is given as a substitute for a previous note secured by mort- gage, the owner is entitled to a foreclosure on the new note. — Spring v. Hill, 6 Cal., 17. 16. A bill in chancery, in the nature of a bill of peace, and praying for a discovery against joint and several trespassers on real estate, will not lie in favor of a plaintiff out of possession claiming title to the land. — Ritdiie v. Dorland, 6 Cal., 33. 17. A mortgage of the defendant in execution who has failed to record his mort- gage until after the sale, has no lien or intervening rights as against the purchaser ; he can only redeem under the statute. — Smith v. Randall, 6 Cal., 47. 18. Production of a note and mortgage, and proof of service of summons, is suffi- cient to justify a decree of foreclosure on default. — Smith v. Harlan, 6 Cal., 173. 19. Our statute forbids the mortgagee from recovering the mortgaged estate without action, and confines his remedy to foreclosure. Therefore he has no right to the ap- pointment of a receiver of rents and profits pending the litigation. — Gui/ v. Lie, 6 Cal., 99. 20. If the complaint refers to the mortgage, a copy of which is thereto annexed containing a description of the land, it is a sufficient description for the purposes of the action. — Emeric v. Tarns, 6 Cal., 155 ; Beiri v. Minturn, (1856, not reported.) 21. The record of a mortgage, the certificate of which does not state that the person was known to the notary to be the person, &c., is not notice of title to third parties. — Wolfv. Foyarty, 6 Cal., 224 ; Kelsey v. Dunlap, 7 ib., Jan. T. 22. A mortgage claim upon the property of a deceased person must be presented to the executors and administrators for allowance, in the same manner as any other claim. Ellisen v. Halkck, 6 Cal., 386 ; Falkner v. Folsom, ib., 412. 23. It is not the province of the mechanic in the case of a subse(|uent lion, to test the legality of a recorded title ; but having contracted with notice of the encumbrances, he is postponed until they are paid. — Fcnjuson v. Miller, 6 Cal., 402. 24. Parol evidence is inadmissible to prove an absolute deed to have been intended as a mortgage, without alleging and proving fraud, mistake or accident in the creation of the instrument. — Lee v. Evans, 7 Cal., Oct. T. ; Low v. Henry, 8 Cal., Ai)ril T. §249 NUISANCE, AVASTE AND TRESPASS. 149 25. The sale of tlie mortgat^ed premises as such, only follows the express decree of the court foreclosing tlie eijnity of redeinjition. — Low v. Jftnnj, 8 Cal., April T. 26. A decree for the sale of mortgaged j)remi«es when the mortgagor is dead, should not he sought in the probate court, but in the district courts. — Belloc v. Rogers, 8 Cal., Jan. T. 27. Under a mortgage foreclosure and sale, a tenant in possession who ha^ been made a party, is bound to allow to the purchaser, or be removed by writ of assistance notwithstanding he claims under an unexpired lease of several years, executed by the mortgagors previous to the date of the mortgage foreclosed. — Lovctt v. German Ref. Church, 9 How. Vw, 220. 28. The owner of the equity of redemption is a necessary party to a suit on fore- closure.— //«// v. Xeltion, 23 Barb., 88. 247. If there be surplus money remaining after payment of the amount due on the mortgage, hen or incumbrance, with costs, the court may cause the same to be paid to the person entitled to it, and in the meantime may direct it to be deposited in court. 248. If the debt for which the mortgage, lien or incumbrance is held, be not all due, so soon as sufficient of the property has been sold to pay the amount due, with costs, the sale shall cease ; and after- wai'ds, as often as more becomes due, for principal or interest, the court may, on motion, order more to be sold. But if the property cannot be sold in portions, without injury to the parties, the whole may be ordered to be sold in the first instance, and the entire debt and costs paid, there being a rebate of interest where such rebate is proper. ^. /i^ . ^,^a^. 1. A defendant cannot object that his wife, who joined in executing the mortgage is not made a co-defendant. — Powell v. Boss, 4 Cal., 197. 2. In a suit to foreclose a mortgage, an adverse claimant cannot be made a party for the purpose of testing the validity of his adverse title. — Corninrj v. Smith, 2 Seld., 82. CHAPTER II. ACTIONS FOR NUISANCE, WASTE AND WILLFUL TRESPASS, IN CERTAIN CASES, ON REAL PROPERTY. 249. Anything which is injurious to health, or indecent, or oifen- sive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. Such action may be brought 150 XUISAXCE, WASTE AND TRESPASS. §2oO by any person whose property is injuriously affected, or whose per- sonal enjoyment is lessened by the nuisance ; and by the judgment the nuisance may be enjomed or abated, as well as damages recovered, 1. The right to recover for use and occnpation is founded alone on contract, A trespass dies with the trespasser. — 0' Conner \. Corbitt, 3 Cal., 370. 2. A person in authority, who destroys the house of another in good faith, and under apparent necessity, during the time of a conflagration, for the purpose of saving the buildings adjacent, and stopping its progress, is not personally liable in an. action by the owner of the property destroyed. — Dnnbar v. San Francisco, 1 Cal., 355 ; Suroc- co v. Geary, 3 Cal., 69. 3. The common law remedy in the abatement of nuisances, still remains in those cases not embraced in the statute. — Stiles v. Luird, 5 Cal., 120. 250. If a guardian, tenant for life or years, joint tenant, or tenant in common of real property, commit waste thereon, any person ag- grieved by the waste may bring an action against him therefor, in which action there may be judgment for treble damages, 251. Any person who shall cut down, or carry off any wood or underwood, tree or timber, or girdle or otherwise injure any tree or timber on the land of another person, or on the street or highway in front of any person's house, village or city lot, or cultivated grounds ; or on the commons or pubUc grounds of any city or town ; or on the street or highway in front thereof, without lawful authority, shall be liable to the owner of such laad, or to such city or town, for treble the amount of damages whichjmay be assessed therefor, in a cinl action, in any court ha\-ing jurismction, 252. Nothing in tly last section shall authorize the recovery of more than the just value of the timber taken from uncultivated wood- land, for the repair of a pubUc highway or bridge upon the land, or adjoining it. 253. If a person recover damages for a forcible or unlawful entry in or upon, <^r detention of, any building or any cultivated real prop- ertv, judgment may be entered for three times the amoimt at which the actual damages are assessed. 1. The demand for treble damag«s must be expressly inserted in the declaration. — Chipman v. Eineric, 5 Cal., 239. ^ §2o4 '^ CONFLICTING CLARIS TO REAL PROPERTY. lol CHAPTER III. j --^^t-v^^" o^ ^''^-U.^y^LryY^ ACTIONS TO DETERMINE CONFLICTING CLAIMS TO REAL PROPERTY, AND ^ OTHER PROVISIONS RELATING TO ACTIONS CONCERNING REAL ESTATE. n I i 254. An action may be brought by any person (a) in possession, *^ by himself or his tenant, of real property, against any person who N^ claims an estate or interest therein adverse to him, for the purpose of r X determinmg such adverse claim, estate or interest. ^ 1. Sustained. — Merced Mrning Co. v. Fremont, 7 Cal., April T. ^J"^ 2. A person cannot be dispossessed of his property under an order of court proceed- ^ '^ in A party cannot ask the recision of a contract on account of an obstacle to its com- V^ pletion, caused by his o\vn fault. Caveat emptor applies in sales of real estate, where there is no fraud, warranty, &c. — Salmon v. Hoffman, 2 Cal., 138. [a) Statutes of 1857, 62. An Act roncernin(] tenants in common, joint tenants and coparceners, passed Mar. 6, 1857. 1. All persons holding as tenants in common, or joint tenants, or coparceners, or any number less than all. may jointly or severally bring or deft-nd any civil action for the enforcement or protection of the rights of such parry. ^-^ 152 CONFLICTING CLAIMS TO REAL PROPERTY. §254 8. Where the title of the phiintiff is inclioate and incom])lete, he cannot sustain an ejectment, and the court jiroperly rejected such title as testimony. — Zee.se v. Clarke, ■"? CaL, 18. 9. To sustain a grant from a town, it is necessary to show that the hinds granted were the property of the town. Wiicn sudi grant contains a surplus, the title is good for the wliole lot, defeasible for the surplus. — Vbilt,& Abbott, 70. 10. If the undertaking substantially complies with the statute, and secures to the respondent all the law designed for him, it is sufficient. — Coleman v. Rowe, 4 Smc. & M., 747 ; Smith v. jVorval, 2 Code R., 14. county court, a district court, against any organized or incorporated city or town in this state, said city, or town, or county, against which such judgment was rendered, may appeal therefrom to any court of competent jurisdiction, by filing a notice of appeal with the said justice of the peace, or clerk of cither of the other courts, as above men- tioned, and serving a copy thereof on the opposite party, or his attorney, within the time and manner provided for ap])eals in other cases ; and said appeals shall be cftectual for all purposes, and shall operate as a supersedeas to any execution that has been or may be issued on said judgment, without the filing of a bond, or the payment of costs to the justice, or other courts, by the said city, or town, or county so appealing. 2. The mayor, attorney, or chief officer of any city, or district attorney, or the pres- ident of tlie board of supervisors of any county, sliall have power to give the notice herein re(|uired to be given, and to perfect such ai)peal on behalf of their respective cor ])orations or counties. §352 * APPEALS FROM DISTRICT COURTS. 179 1 1 . An appeal is perfected when the proper undertakni<^, with affidavit of sureties, has been executed, and notice of tlie appeal has been served on the adverse party, and on the clerk with vvliom the judgment or order was entered. — Thompson v. Blanchard, 4 How. Pr., 210. 34S. If the appeal be from a judgment or order directing the pay- ment of money, it shall not stay the execution of the judgment or order unless a written undertaking be executed, on the part of the appellant, by two or more sureties, stating their places of residence and occupa- tion, to the eftect that they are bound in double the amount named in the judgment or order, that if the judgment or order appealed from, or any part thereof, be affirmed, the appellant shall pay the amount di- rected to be paid by the judgmentfor order, or the part of such amount as to which the judgment or order shall be affirmed, if affirmed only in part ; and all damages and costs which shall be awarded against the appellant upon the appeal. . . 1. A stay of proceedings, from its nature, only operates upon orders or judgments commanding some act to be dona ; it does not reach a case of injunction. — Merced Min- ing Co. V. Fremont, 7 Cal., Jan. T. 2. A judgment directing the payment of money out of a fund in court, is not a judgment directing the payment of money, within this section. — Curtis v. Leavitt, 1 Ab- bott, 274; 10 How. Pr., 481. 350. If the judgment or order appealed from direct the assignment or delivery of documents, or personal property, the execution of the judgment or order shall not be stayed by appeal, unless the things re- quired to be assigned or delivered be placed in the custody of such officer or receiver as the court may appoint ; or unless an undertaking be entered into, on the part of the appellant, with at least two sureties, and in such amount as the court or the judge thereof, or county judge, may direct, to the effect that the appellant will obey the order of the appellate court upon the appeal. 351. If the judgment or order appealed from direct the execution of a conveyance or other instrument, the execution of the judgment or order shall not be stayed by the appeal, mitil the instrument is execut- ed and deposited with the clerk, with whom the judgment or order is entered, to abide the judgment of the appellate court. 352. If the judgment or order appealed from direct the sale, or delivery of possession of real property, the execution of the same shall 180 UXDERTAKIXG ON APPEAL. §353 not be stayed, unless a written undertaking be executed on the part of the appellant, with two or more sureties, to the effect that during the possession of such property by the appellant, he will not commit, or suffer to be committed, any waste thereon, and that if the judgment be aflBrmed, he will pay the value of the use and occupation of the property, from the time of the appeal until the delivery of possession thereof, pursuant to the judgment or order, not exceeding a sum to be fixed by the judge of the court by which the judgment was rendered or order made, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking shall also pro- vide for the payment of such deficiency. 353. Whenever an appeal is perfected, as provided by the preced- ing sections in this chapter, it shall stay all further proceedings in the court below, upon the judgment or order appealed from, or upon the matter embraced therein ; but the court below may proceed upon any other matter included in the action, and not affected by the judgment or order appealed from. And the court below may, in its discre- tion, dispense with, or limit the security required by said sections, when the appellant is an executor, administrator, trustee, or other person acting in another's right. 354. The undertaking prescribed by sections three hundred and forty-eight, three hundred and forty-nine, three hundred and fifty, and three hundred and fifty-two,, may be in one instrument, or several, at the option of the appellant. 355. [1854.] An imdcrtaking upon an appeal shall be of no ef- fect unless it be accompanied by the affidavit of the sureties, that they are each worth the amount specified therein over and above all their just debts and Uabilities, exclusive of property exempt from execu- •tion, except where the judgment exceeds three thousand dollars, and the undertaking on appeal is executed by more than two sureties, they may state on their affidavit that tliey are severally worth amounts less than that expressed in the undertaking, if the whole amount be equiv- alent to that of two sufficient sureties. The adverse party may, how- ever, except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they or other sureties justify before a judge of the court below, or a county judge, or the county §358 UNDERTAKING ON APPEAL. 181 clerk, within five days thereafter, upon notice to the adverse party, to the amounts stated in theu' affidavits, the appeal shall be regarded as if no such undertaking had been given, and in all cases -where an un- dertaking is required on appeal by the provisions of this chapter, a deposit in the court below of the amount of the judgment appealed from, and three hundred dollars in addition, shall be equivalent to filing the undertaking, and in all cases the undertaking or deposit may be waived by the written consent of the respondent. 1. On an application for justification of sureties on an appeal, the Hierits of the ap- peal will not be considered. — Bradley \. Hall, 1 Cal., 199. 2. That the undertaking be approved, is an important feature in perfecting an ap- peal. — Wade V. Am. Col. Soc, 4 Sme. & M., 670. 3. The exception should be to " sureties," and not to the undertaking. — Yowu/ v. Colby, 2 Code R., 68. 4. The sureties need only justify to double the amount of the judgment. — Rich v. Beehnan, 2 Code R., 63. 356. In cases not provided for in sections three hundred and for- ty-nine, three hundred and fifty, three hundred and fifty-one, and three hundred and fifty-two, the perfecting of an appeal, by giving the midertaking, and the justification of the sureties thereon, if required, or making the deposit mentioned in section three hundred and forty- eight, shall stay proceedings in the court below upon the judgment or order appealed from ; except that where it directs the sale of perish- able property, the court below may order the property to be sold, and the proceeds thereof to be deposited, to abide the judgment of the ap- pellate court. 357. ■ [1854.] Appeals in the supreme court may be brought to a hearing by either party, upon a notice of three days to the opposite party. Before the argument each party shall furnish to the other, and each of the justices, a copy of his points and authorities, or either party may file one copy thereof with the clerk, who shall cause the requisite copies to be made. 1. When appellant notices case for argument, respondent may affirm the judgment, ex parte, although he gave no notice. — CoiistantY. Ward, 1 Cal., 333. 358. When judgment is rendered upon the appeal, it shall be cer- tified by the clerk of the supreme court to the clerk with whom the judgment roll is filed, or the order appealed from is entered. In cases 182 APPEALS FROM COUNTY COURTS. §359 of appeal from the judgment, the clerk with -whom the roll is filed shall attach the certificate to the judgment roll, and enter a minute of the judgment of the supreme court on the docket against the original entry. In cases of an appeal from the order, the clerk shall enter at length in the records of the court the certificate received, and minute against the entry of the order appealed from, a reference to the certif- icate, with a brief statement that such order has been affirmed, re- versed, or modified, as the case may be, by the supreme court, on appeal. See Sees. 657 and 665. 1. AVhcre a remittitur is sent down, the clerk of the district court may issue exe- cution for costs. — Mayor of the citij of Marjjsville v. Buchanan, 3 Cal., 212. 2. After a cause has been regularly remitted to the court below, this court has no juris- diction to grant relief. The only remedy is a new appeal. — Frazer v. Western, 3 How. Pr., 235 ; Dresser v. Brooks, 4 How. Pr., 207. CHAPTER III. APPEALS TO THE DI^TRKm; [SUPREME] COURTS FROM TUE COUNTY COURTS. 1. The appellate jurisdiction of district courts held unconstitutional. — People v. Pe- ralto, 3 Cal., 379 ; Caultickl v. Hudson, 3 Cal., 389 ; Hernandes v. Simon, 3 Cal., 464 ; Reed v. McCormick, 4 Cal., 342; Townsend v. Brooks, 5 Cal., 52. 350. [1854.] An appeal may be taken to the supreme court from a judgment of the county court, in all cases where the amount in dispute exceeds two hundred dollars, or where the legality of any tax, toll or impost, or municipal fine, is in question. 1. Tliough the plaintiff recover less than two hundred dollars, the defendant is en- titled to an appeal, if the costs added to tlie judgment exceed two hundred dollars. — Gordon v. Ross, 2 Cal., 156. 3G0. [1854.] Security shall be given upon such appeal in the same manner and to the same extent as upon an appeal to the su- preme court from the district court, and like justification on the part of the sureties may be required. 3G1. [1854.] iVppeals from the county courts shall be brought to a hearing in the same manner, and upon like notice, as appeals from the district court. §363 APPEALS FROM PROBATE COURTS. 183 302. [1854.] The appellant shall furnish the papers for the su- preme court, in the same manner as upon appeals from the district court. CHAPTER IV. APPEALS TO THE DlgTftiCL_COURTS [SUPREME COURT] FROM THE PROBATE COURTS. 1. The appellate jurisdiction of the district court declared unconstitutional. Sec Chapter III, p. 182. 2. Issues made in the probate courts are certified to, and are to be tried in the dis- trict courts, from which appeals lie to the supreme court. See statute cited in note a. 363. An appeal (a) may be taken from a probate court to the district court of the district in which the probate court is held, in the following cases : (a) Statutes of 1855, 301 ; Wood's Digest, 421, art. 2345. 8. An appeal may be taken to the supreme court from an order, decree or judgment of the probate court, where the estate or amount in dispute exceeds two hundred dol- lars, in the following: cases : 1st. For, or against granting or revoking letters testamentary or of administra- tion ; 2d. For, or against admitting a will to probate ; 3d. For, or against the validity of a will, or revoking the probate thereof ; 4th. For, or against setting apart property, or making an allowance for a widow or child ; 5th. For, or against directing the sale or conveyance of real property ; 6th. On the settlement of an executor or administrator ; 7th. For, or against declaring, allowing or directing the payment of a debt, claim, legacy or distributive share. 9. The appeal may be taken within sixty days after the order, decree or judgment is made and entered in the minutes of the court ; it shall be made by filing with the clerk of the probate court, a notice stating the appeal from the order, decree or judg- ment, or some specific part thereof, and by executing an undertaking, or giving surety, on such appeal in tlie same manner, and to the same extent, as upon an appeal to the supreme court from the district court ; provided, the appeal of an executor or admin- istrator who has given an ofiicial bond, shall be complete and effectual without the un- dertaking ; provided also, from an order, decree or judgment, made since tlie first day of October, eighteen hundred and fifty-four, the a]ipeal may be taken within sixty days after the passage of this act. After the appeal is determined, suit may be brougiit and prosecuted to judgment on the undertaking, in the name of any party beneficially in- terested therein. -^ J 84 APPEALS FROM PROBATE COURTS. §3G4 1st. From an order or decree admitting a will to probate, or refu- sing the same ; 2d. From an order setting apart property, or making an allowance for the widow or children ; 3d. From an order granting letters testamentary or of administra- tion, or appointing a guardian of an infant, or of an insane person, or of a person incompetent to manage his property, or refusing to grant such letters, or to make such appointment, or making such letters or appointment ; -Ith. From an order directing the sale or conveyance of real property ; oth. From an order or decree by which a debt, claim, legacy, or distributi\'e share is allowed, or payment thereof dii'ected ; or by which such allowance or direction is refused ; Gth. From an order made on the settlement of an executor, admin- istrator or guardian. 304. The appeal shall 1)0 taken within thirty days after the order or decree appealed from is entered Avith the clerk. 865. [1854.] Appeals from the probate court shall be brought to a hearing at the earliest period practicable. For a failure to prose- cute an ap})cal, or unnecessary delay in bringing it to a hearing, the district court may order the appeal dismissed. 10. "When a party who has a right to appeal, wishes a statement of the case to be annexed to the reeord, he shall prepare and file the same witiiin twenty days after the entry of the order, decree, or judf^ment ; Pruviik-d, if the order, decree or judgment has l)ecn made since tlie first day of Octol)er, eighteen hundred and fifty-four, he shall pre- pare and file such statement within twenty days after the passage of this act. 11. The provisions as amended, of Chapter I, Title IX., of the Practice Act, so far as the same do not conflict witli the provisions of tnis act sliall be applicai)le to appeals from tiie probate court. 12. When an issue is certified for trial, the clerk of the probate court sliall transmit all papers and records necessary for the trial of the issue, to the district court ; after such trial the clerk of the district court shall return the same, with tlic proceedings of the court, to the probate court. 13. Wiicrc it is not otherwise prescribed bj* law, the probate court or tiie supreme court on appeal, may, in its discretion, order costs to be paid by any party to the pro- ceedings, or out of the estate, as justice may require ; execution for the costs may issue out of the probate court. §367 APPEALS TO COUNTY COURTS. 185 CHAPTER V. appeals to the county courts from justices' and recorders' courts. 366. [1854.] Judgments in all civil cases rendered bj justices', recorders' and mayors' courts, may be reviewed by the county court ; ■when the appeal is taken on questions of law alone, it shall be heard on a statement of the case prepared as prescribed in Title XVI of this Act. When the appeal is taken on questions of fact, or on questions of both law and fact, the action shall be tried anew in the county court, and either party may, on such trial, demand a jury. 1. "Where both parties appear, no notice of appeal is necessary to be shown. — Mc- Leran v. Shartzer, 5 CaL, 70. 2. The county court where an appeal bond is defective, should give leave to file a good bond. — Billings v. Roadhouse, fy Cab, 71. 3. The trial on appeal in county courts must be de novo, and the judgment of the justice's court cannot be reversed for error. — Coijle v. Baldwin, 5 Cal., 75. 4. A sufficient excuse for failing to produce an appeal bond will be heard by the court, and if admitted, a bond maybe allowed to be filed. — Howard v. Harman, 5 Cal., 78. 5. In an appeal notice, the words " whole judgment " are sufficiently definite. — Price V. Van Caneghan, 5 Cal., 123. 6. The county court has no jurisdiction to enforce a mechanic's lien, where the amount in controversy exceeds two hundred dollars. — Brock y. Bruce, 5 Cal., 279. 7. Where the judgment of the court below exceeds in amount the jurisdiction, the county court on appeal, should dismiss the whole case. — Ford v. Smith, 5 Cal., 331. 8. The power of the county court to treble damages by way of penalty, in actions of forcible entry, results by implication from a power to try de novo. — O'Callaghan v. Booth, 6 Cal., 63. 9. If the appeal be on points of law alone, and a new trial be granted, such new trial shall be had in the county court after a reasonable time. — People v. Freelon, 7 Cal., Oct. T. 367. [1854.] Upon an appeal heard upon a statement of the case, the county court may review all orders affecting the judgment appealed from, and may set aside, or confirm, or modify any or all of the proceedings subsequent to, or dependent upon, said judgment ; and may, if necessary or proper, order a new trial. When the action is tried anew, on appeal, the trial shall be conducted in all respects, as trials in the district court. The provisions of this act, as to changing the place of trial, and all the provisions as to trials in the district court, M 186 PKOCEEDINGS AGAINST JOINT DEBTORS. §308 shall be applicable to trials on appeal in the county court. For a fail- ure to prosecute an appeal, or unnecessary delay in bringing it to a hearing, the county court, after notice, may order the appeal to be dis- missed. Judgments rendered in the county court on appeal, shall have the same force and effect, and be enforced in the same manner, as judg- ments in actions commenced in the district court. See Sees. 624-629, 640. TITLE X. MISCELLANEOUS PROCEEDINGS. CHAPTER I. PROCEEDINGS AGAINST JOINT DEBTORS. 368. When a judgment is recovered against one or more of sev- eral persons, jointly indebted upon an obligation, by proceeding, as provided in section thirty-two, those who were not originally served oT. T* . Avith the summons, and did not appear in the action, may be summoned to show cause why they should not be bound by the judgment, in the same manner as though they had been originally served with the . ^ summons. .-■^ See Sec. 32. 1. In a suit against partners, judgment can be taken only against those served with process. — Imjraham v. Gildcmeester, 2 Cal., 88. 2. When some of the defendants arc not served with process, the plaintiff may pro- ceed against those served. — lb. 3. A covenant not to sue made to a portion only of Joint debtors, does not release any of them.— Matt/ie)/ v. GnUij, 4 Cal., 62. 4. In an action against two defendants on a joint and several obligation, the entry of a final judgment on default against one is the discharge of the other. — Stearns wAguirre, 6 Cal., 176. 5. A release of one joint debtor is a release of the other ; but it must be a technical release under seal. — Armstromi v. Jldijwnrd, 6 Cal., 183. 6. In such a proceeding, does the cause of action or right to proceed arise upon judgment or the original demand ? — Oakley v. Aspinu-aU, 4 Corns., 513. J §374 CONFESSION OF JUDGMENT. 187 369. The summons as provided in the last section, sliall describe the judgment, and require the person summoned to show cause why (J~f he should not be bound by it, and shall be served in the 'same manner, and returnable Avithin the same time, as the original summons. It shall not be necessary to file a new complaint. 370. The summons shall be accompanied by an affidavit of the plaintiff, his agent, representative, or attorney, that the judgment, or cX^ some part thereof, remains unsatisfied, and shall specify the amount due thereon. 371. Upon such summons, the defendant may answer within the time specified therein, denying the judgment, or setting up any defense which may have arisen subsequently ; or he may deny his liability on '^ • -P. the obligation upon which the judgment was recovered, except a dis- charge from such liability by the statute of limitation. 372. If the defendant in his answer deny the judgment, or set up any defense which may have arisen subsequently, the summons, with the affida\dt annexed, and the answer, shall constitute the written alle- J I?* gations in the case ; if he deny his liability on the obligation upon which the judgment was recovered, a copy of the original complaint and judgment, the summons with the affidavit annexed, and the an- swer, shall constitute such written allegations. 373. The issues formed may be tried as in other cases ; but when the defendant denies, in his answer, any liability on the obligation upon T*^ which the judgment was rendered, if a verdict be found against him, '^'-~ • it shall be for the amount remaining unsatisfied on such original judg- ment, with interest thereon. CHAPTER II. CONFESSION OF JUDGMENT WITHOUT ACTION. 374. A judgment by confession may be entered without [action, either for money due, or to become due, or to secure any peri^on against contingent liabiUty on behalf of the defendant, or both, in the manner prescribed by this chapter. 188 CONFESSION OF JUDGMENT. §375 1. A junior jTidgingnt creditor must resort to a court of equity if he is dissatisfied with the Ijoua fides^OT the confession of judgment. — Arrinjton v. Sherry, 5 Cal., 513. 2. A judgment confessed for the purpose of hindering, delaying or defraudmg cred itors, is void as to such creditors — Zi'yaH v. Daly, 6 Cal., 2.38. 3. The court may set aside a judgment entered therein, for a defect in the statement upon which it is entered, on the application of a junior judgment creditor. — Chajipel v. Chappel, 2 Kern., 215. 4. A public officer who is liable to be sued for services rendered for the public, at his request may confess a judgment in his official capacitj', for the amount. — Geie v. Supeifisors of Cayuga county, 7 How. Pr., 255. 5. On a judgment by confession there is no suit, no recovery or adjudication until the judgment is entered Iiy the clerk ; and this act not only creates the lien, but the judgment. — Blyndenhurgh v. Northrop, 13 ib., 289. 6. Whether a person not a direct party to a confessed judgment, but complaining of its injurious operation, shall be heard summarily on informal affidavits, or be put to the more tedious remedy by a bill in equity, depends upon the particular circumstances in each particular case, to be judged of after the affidavits on both sides have been read. Tiie usual course has been to grant the same relief on motion, as might be obtained on formal suit. — Loivher v. Mayor of New York, 5 Abbott, 325, 484. 7. A judgment confessed by one partner, in tlie name of himself and his copartner, is void as to his coi)artner. — Morgan v. Richardson, 16 AIo., 409; Stoutenburgh v. Vandenburgh, 7 How. Tr., 229 ; Evtrsojir. Gthrman, 10 ib., 301. 375. A statement in -writing shall be made, signed by the defend- ant, and verified by his oath to the foUovring effect : 1st. It shall authorize the entry of judgment for a specified sum ; 2d. If it be for money due, or to become due, it shall state concisely the facts out of which it arose, and shall show that the sum confessed therefor is justly due, or to become due ; 3d. If it be for the purpose of securing the plaintiff against a con- tingent liability, it shall state concisely the facts constituting the lia- bility, and shall show that the sum confessed therefor does not exceed the same. 1. The failure to make all the disclosures in the statement is prima facie evidence of fraud, and must be explained. — Richards v. McMillan, 6 Cal., 419. 2. The facts out of which the indebtedness arose, as evidenced by a promissory note, should be concisely s^tatcCi.— Chappel v. Chappel, 2 Kern., 215 ; Plummcr v. Plum- mer, 7 How. Pr., 62 ; Boydcn v. Johnson, 11 ib., 503; Ilop/wck v. Donaldson, 12 ib., 141 Siebbins v. East Society of the M. E. Church, ib., 410 ; Gandal v. Finn, 13 ib., 418 ; 23; Barb., 652 ; Thompson v. T oh Vechten, 5 Abbott, 458 ; Ucaly v. Preston, 14 How. Pr., 20. 3. The statement in wn-iting must show that the sum confessed is justly due. — Schoolcraft v. Thompson, 7 How. Pr., 446. 4. A statement for confession of judgment which recites generally that the judgment §379 SUBMITTING A CONTROVERSY. 189 ■was for goods solil ami delivered, or on a note given for goods sold and delivered, is insufficient. — Mootli/ v. Townsciul, 3 Abbott, 375 ; Von Beck v. S/nnnan, 13 IIow. Pr., 472. 376. The statement shall be filed with the clerk of the county in which the judgment is to be entered, who shall endorse upon it, and enter in the judgment book a judgment of such court, for the amount confessed, with ten dollars costs. The statement and affidavit, with the judgment endorsed, shall thereupon become the judgment roll. 1 . The court will not allow a party to suffer by the omission or mistake of a clerk, attorney or officer of the court, where a substantial right is involved, on a confession of judgment. — Xeele v. Berryhill, 4 How. Pr., 16. CHAPTER III. SUBMITTING A CONTROVERSY WITHOUT ACTION. 377. Parties to a question in difference, which might be the sub- ject of a civil action, may, without action, agree upon a case contain- ing the facts upon which the controversy depends, and present a sub- mission of the same to any court which would have jurisdiction, if an action had been brought. But it must appear, by affidavit, that the controversy is real, and the proceedings in good faith, to determine the rights of the parties. The court shall thereupon hear and deter- mine the case, and render judgment thereon, as if an action were de- pending. 1 . It is a general rule that the court will not entertain a fictitious case, to test a right to a particular thing. — Port Gibson Bank v. Dickson, 4 Sme. & M., 689 ; Brew- ington v. Lowe, 1 Ind., (Carter,) 21. 378. Judgment shall be entered in the judgment book as in other cases, but without costs for any proceeding prior to the trial. The case, the submission, and a copy of the judgment, shall constitute the judgment roll. 379. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be in the same manner sub- ject to appeal. 190 ARBITRATIONS. §380 CHAPTER IV. OF ARBITRATIONS. 380. Persons capable of contracting may submit to arbitration any controversy whicli might be the subject of a civil action between them, except a question of title to real property in fee or for life. This qualification shall not include questions relating merely to the partition or boundaries of real property. 1. A reference may be an arbitration, and the report thereon an award. — Blunt v. Whitney, 3 Sand., 4. 381. The submission to arbitration shall be in writing, and may be to one or more peisous. See Sec. 529. 1. Submission to arbitration discontinues a suit. A consent to submit to arbitra- tion does not authorize an entry of judgment. Gimter v. Sanchez, 1 Cal., 45. 382. It may be stipulated in the submission, that it be entered as an order of the county court, or of the district court, for which pur- pose it shall be filed with the clerk of the county where the parties, or one of them, reside. The clerk shall, thereupon, enter in his regis- ter of actions a note of the submission, with the names of the parties, the names of the arbitrators, the date of the submission, when filed, and the time limited by the submission, if any, within which the award shall bo made. When so entered, the submission shall not be revoked without the consent of l^oth parties. The arbitrators may be compelled by the court to make an award, and the award maybe enforced by the court, in the same manner as a judgment. If the submission be not made an order of the court, it may be revoked at any time before the award is made. 383. Arbitrators shall have power to appoint a time and place for hearing, to adjourn from time to time, to administer oaths to witnesses, to hear the allegations and evidence of the parties, and to make an award thereon. 1. Arbitrators are not l)uund to decide according tohiw. — Muldrowv. Xunis, 2 Cal., 74 ; Peachy v. liltrhie, 4 Cal., 205. §385 ARBITRATIONS. 191 2. Where parties refer all differences to arbitration, it is the duty of the arbitrators to pass upon the whole subject in controversy, and if it appear upon the face of the award that they have not disposed of the whole matter, but have left a part open, or if the terms of the award be such as to render a further inquiry necessary to ascertain a sum of money to be paid or some act to be done, it is void, and will be set aside. — Por- ter V. Scott, 7 Cal., April T. 3. If the amount involved be over $200, it cannot be entered as an order of the county court. — WiUkims v. Walton, 8 Cal., Jan. T. 4. When an arbitrator exceeds his authority, the effect of his act is void, whether done conscientiously or by mistake. — Boirowe v Milbank, 5 Abbott, 28. 5. Wliere witnesses were examined without being sworn, and no objection taken thereto, it will be presumed the parties assented thereto. — Bergh v. Pfeiffer, Lalor's Sup., 110. 384. All the arbitrators shall meet and act together during the investigation ; but when met, a majority may determine any question. Before acting, they shall be sworn before an officer authorized to ad- minister 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 understanding. 385. The award shall be in writing, signed by the arbitrators, or a majority of them, and delivered to the parties. When the submission is made an order of the court, the award shall be filed with the clerk, and a note thereof made in his register. After the expiration of five days from the filing of the award, upon the appHcation 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 shall be entered by the clerk in the judg- ment book, and shall thereupon have the eSect of a judgment. 1. Where the arbitration is to end litigation, and becomes uncertain and incomplete, it must be .set aside. — Pierson v. Norman, 2 Cal., 399. 2. The statute must be pursued in the manner in which the submission is filed with the clerk, and the motion made for judgment on tlie award. — Ileslep v. Citi/ of San Francisco, 4 Cal., 1. 3. An award rendered upon a fair arbitration and concurred in, is conclusive. — Jar- vis v. Fountain Water Co., 5 Cal., 179. 4. A valid award made by an arbitrator upon a cause of action, is a bar to a suit thereon, although the award has not been performed. — Brazill v. Mam, 2 Kern., 9. 5. An award which leaves nothing to be done, to dispose of the whole matter in con- troversy, except mere ministerial acts, is sutMciently certain and final. — Owen v. Boerum, 23 Barb., 187. 192 ARBITRATIOX. §386 386. The court, on motion, may vacate the award upon either of the following grounds, and may order a new hearing before the same arbitrators, or not, in its discretion : 1st. That it was procured by corruption or fraud ; 2d. That the arbitrators were guilty of misconduct, or committed gross error in refusing, on cause shown, to postpone the hearing, or in refusing to hear pertinent evidence, or otherwise acted improperly, in a manner by which the rights of the party were prejudiced ; 3d. That the arbitrators exceeded their powers in making their award ; or that they refused, or improperly omitted, to consider a part of the matters submitted to them ; or that the award is indefinite, or cannot be performed. 387. The court may, on motion, modify or correct the award where it appears : 1st. That there was a miscalculation in figures, upon which it was made, or that there is a mistake in the description of some person or property therein ; 2d. 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 ; 3d. When the award, though imperfect in form, could have been amended if it had been a verdict, or the imperfection disregarded. 1. Awards must be set aside for fraud, mistake or accident. An award may be en- forced for tbe good part, and set aside for tiio bad. — Muldroiv v. Xorris, 2 Cal., 74. 388. The decision upon the motion shall be subject to appeal in the same manner as an order which is subject to appeal in a civil action ; but the judgment entered before a motion is made, shall not be subject to appeal. 1. A stipulation that neither party will appeal, is not binding. — Muldrow v. Xorris, 2 Cal., 74.. 389. If a submission to arbitration be revoked, and an action be brought therefor, the amount to be recovered shall only be the costs and damages sustained in preparing for and attending the arbitration. §390 OFFER TO COMPROMISE. 193 CHAPTER V. OFFER OF THE DEFENDANT TO COMPROMISE THE WHOLE OR A PART OF AN ACTION. 390. The defendant may, at any time before the trial or judgment, serve upon the plaintiflF an offer to allow judgment to be taken against him, for the sum or property, or to the effect therein specified. If the plaintiff accept the offer, and give notice thereof within five days, he may file the summons, complaint and offer, with an affidavit of notice of acceptance, and the clerk shall thereupon enter judgment accord- ingly. If the notice of acceptance be not given, the offer shall be deemed withdrawn, and shall not be given in evidence ; and if the plaintiff fail to obtain a more favorable judgment, he shall not recover costs, but shall pay the defendant's costs, from the time of the offer. 1. A cognovit is good as au admission in pais after answer is filed. — Ilirschjield v. Franklin, 6 Cal., 607. 2. The offer under the code, is analogous to the cognovit under the former practice. Emery v. Emery, 9 How. Pr., 130 ; Johnson v. Sugar, 10 How. Pr., 5.52; Lippman v. Joelson, 1 Code, N. S., note, 161. 3. That the defendant offered to let the plaintiff take judgment for a sura admitted in the answer to be due, which offer plaintiff declined, is no reason for denying plaintiff's motion, that defendant pay into the court the sum admitted to be due. — Dusenberry v. Woodward, I Abbott, 443. 4. A defendant against whom a judgment is obtained for a less amount than he offer- ed in writing to allow judgment to be taken against him, is entitled to costs against the plaintiff" from the time of the offer. — M'Lees v. Avery, 4 How. Pr., 441. 5. A plaintiff has in all cases five days to elect whether he will accept or proceed to trial. If notice is served so that the cause is reached and tried before the expiration of the five days, the rights of the parties are in all respects as if no offer had been made. — Pomeroy v. Iltilin, 7 ib., 161. 6. Where tiie plaintiff failed to obtain a more favorable judgment in amount than was offered by defendant, but on the trial extinguished a set-off of the defendant, which with the verdict exceeded the defendant's offer, the plaintiff was entitled to full costs. — Rufjijles V. For/(/, ib., 324. 7. The offer amounts to a written stipulation on the part of the defendant ; and precludes him from taking any steps in the cause until the five days expire, or tlie writ- ten notice of accei)tance be served. — Walker v. Johnson, 8 ib., 240. 8. The offer will not be avoided by serving an amended answer. — Kilts v. Seeber, 10 ib., 270. 9. There should be no doubtful language or misunderstanding about the offer. — Post v. New York Central li. R. Co., 12 ib., 552. 194 WITNESSES. §391 TITLE* XI. JTT or "WITNESSES, AND OF THE MANNER OF OBTAINING EVIDENCE. CHAPTER I. OF WITNESSES. 391. All persons, -^-itliout exception, otherwise than as specified in in this chapter, may be witnesses in any action or proceeding. 1. The court should decide upon tlie admissibility of a witness, and not refer the question to the jury. — Tahor v. Slankh, 2 Cal., 240. 2. A book-keeper, as a witness, has a right to refer to the books kept by him, to re- fresh his memory. — Treadwelly. Wells, 4 Cal., 260. 3. Where evidence offered to be given as a defense to the action is excluded by the court on the ground that it is not warranted by the pleadings, the party should offer it again in mitigation of damages, if he wishes to avail himself of it for that purpose. — Travis v. Bcm/er, 26 Barb., 615. 392. [1851.] No person offered as a witness shall be excluded on account of his opinions on matters of religious beUef ; nor shall any person be excluded on account of his interest in the event of the action or proceedings, except in the following cases : 1st. When he is a party to the action or proceeding, or the action or proceeding is prosecuted or defended for his immediate benefit. 2d. When his interest is a present, certain, and vested interest. 1. Wiierc a witness is examined on his voir dire, as to his interest, the party offer- ing him, may cross-examine him. — Beach v. Covillaitd, 2 Cal., 237. 2. Sections 392 and 393 exclude all testimony, when the witness would be benefit- ed by It.— Joiu's v. Post, 4 Cal., 14 ; Gntf^n v. Alsop, lb., 406. 3. Tlie indorser of a note is not a party ; he may be a witness. — Tomliiisoii v. Spen- ser, 5 CaI., 291. 4. An agent may be a witness as to his authority. — lb. 5. A witness may be examined as to whether he belongs to a secret society, with a view to show tliat the princi])les and objects of such society are such that his testimony is liable to suspicion of unfairness. — Pioplc v. lieijts, 5 Cal., 347 ; People v. Christie, 2 Abbott, 256. 6. A party has no right to cross-examine a witness except as to facts and circum- §393 WITNESSES. 195 stances connected witli the matter stated in his direct examination. — La)ul.sberrier v. Gorham, 5 Cal., 450. 7. In a suit by a claimant of attached property against the sheriff, the testimony of a sul)se(iucnt attaeiiing creditor who has executed an indemnifying bond to the sheriff' to liohl him harml^'s in Iiolding the property, is not admissible. — lb. ; lloicland v. Willetts, 5 Seld., 170. ■^* 8. A broker cannot be a witness if his commisson depends on tlie result. — Shaw v. Davis, •■) Cal., 466. 9. In an action against a corporation, a witness wlio was a member of the corpora- tion when the liabilities were incurred on which the action was brought, is incompetent. McAulfij V. York Mining Co., 6 Cal., 80. 10. A witness is competent if his wages did not depend upon the fact whether gold was taken out of the particular locality in dispute. — Live Yankee Co. v. Oregon Co., 7 Cal., Jan. T. 11. Where the clerk of the court is called as a witness to prove the records of the court of which he is a clerk, it is no objection that he is interested in the result of the suit. — Price v. Dunlap, 5 Cal., 483. 12. A maker of a note cannot be a witness to charge his endorser. His interest is not equally balanced. — Palmer v. Tripp, 6 Cal., 82. 13. A defendant, though not served, if a party to the record, cannot be called as a witness under the first subdivision above, if the evidence connects him with the trespass. Gates V. Nash, 6 Cal., 192. 14. The maker of a note after judgment against him, is a competent witness for the endorser, because his interest is equally balanced. — Vance v. Collins, 6 Cal., 435. 15. A witness responsible to the plaintiff" as endorser of the note, had a direct inter- est in establishing a lien upon the property of the defendants, and was therefore an in- competent witness for that purpose. — Soule v. Dawes, 6 Cal., 473. 16. The first subdivision of the section is not controlled by the first part and the succeeding section. — Lucas v. Payne, 7 Cal., Jan. T. 17. The interest must be a legal and not a moral interest. — Jones v. Love, 8 Cal., Jan. T. 18. A co-defendant, although material as a witness, cannot be examined until his case is passed upon, if he is improperly joined as a co-defendant. — Lucas v. Payne, 7 Cal., Jan. T. ; Domingee v. Getman, 8 ib., Jan. T. 19. A party has a right to the preliminary oath, called the voir dire, administered to a witness against him, and to examine him touching his competency before he is sworn in chief. — Seeley v. Engell, 3 Kern., 542. 393. [1854.] The true test of the interest of a person, which shall render him incompetent as a witness, shall be that he will gain or lose bj the direct legal operation and' effect of the judgment, or that the record of the judgment will be legal evidence for or against him, in some other action ; but nothing in this, or in the last section, shall pre- vent a party calling as a witness the adverse party to the action, or a 196 WITNESSES. §394 person whose interest is adverse, nor a party being a witness in the cases mentioned in section four hundred and twenty-three. 1. A driver is not a competent witness for his employer, in an action for negligently driving against one, without previously being released by his employer. — Finn v. Vallejo Wharf Co., 7 Cal., Jan. T. 2. One wiio has indemnified the sheriff for taking property by virtue of an execu- tion, is not a competent witness for the sheriff in defense to a snit against him. — How- land V. Willnts, 5 Sclden, 170. 394. [1854.] The folloAving persons shall not be witnesses : 1st. Those who are of unsound mind at the time of their production for examination ; 2d. Children under ten years of age, who, in the opinion of the court appear incapable of receiving just impressions of the facts re- specting which they are examined, or of relating them truly ; 3d. Indians, or persons having one-half or more of Indian blood, and negi'oes, or persons having one-half or more of negro blood, in an ac- tion or proceeding to which a white person is a party ; 4th. Persons against whom judgment has been rendered upon a conviction for a felony, unless pardoned by the Governor, or such judg- ment has been reversed on appeal. 1. 3d. Held to apply to Chinese.— Pfo;*Ze v. Hall, 4 Cal., .399. 395. A husband shall not be a witness for or against his wife, nor a wife a witness for or against her husband ; nor can either, during the marriage, or afterwards, be, without the consent of the other, exam- ined as to any communication made by one to the other during the marriage. But this exception shall not apply to an action or proceed- ing by one against the other. 396. An attorney or counselor, shall not, Avithout the consent of his client, be examined as a witness as [to] any communication made by the client to him, or his advice given thereon, in the course of profes- sional employment. 1. Ldndsbtnjcr Y. Gorliam, 5 Cal., 450. 397. A clergyman or priest shall not, without the consent of the person making the confession, be examined as a witness as to any con- fession made to him in his professional character, in the course of dis- cipline enjoined by the church to which he belongs. §403 ATTENDANCE OP AVITNESSES. 197 398. A licensed physician or surgeon shall not, Avithout the con- sent of his patient, be examined as a witness, as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient. Lyt-r^-v^U<^C , -fl<^<. <^^^ ^ 399. A public officer shall not be examined as a witness as to com- munications made to him in official confidence, when the public interest would suffer by the disclosure. 400. The judge himself or any juror, may be called as a witness by either party ; but in such case it shall be in the discretion of the court or judge to order the trial to be postponed or suspended, and to take place before another judge or jury. 401. When a witness does not understand and speak the English language, an interpreter shall be sworn to interpret for him. CHAPTER II. MANNER OF COMPELLING THE ATTENDANCE OF AVITNESSES, AND THEIR RIGHTS AND DUTIES. 402. [1855.] A subpoena may require, not only the attendance of the person to whom it is directed at a partic\iJar time and place, to testify as a Avitness, but may also require him to bring any books, documents, or other things under his control, to be used as evidence. No person shall be required to attend as a Avitness before any court, judge, justice, or any other officer out of the county in Avhich he re- sides, unless the distance be less than thirty miles from his place of residence to the place of trial. 403. The subpoem^ shall be issued as foUoAA's: i ^-^ 1st. To require attendance before a court, or at the trial of an issue therein, it shall be issbedanthe name and under the seal of the court before which the attendancei§">i:^|uired, or in which the issue is \ , ] pending ; 2d. To require attendance out of couVt before a judge, justice, or other officer authorised to administer oaths, or take testimony in any /^ 5 iiOZ 198 ATTENDANCE OF WITNESSES. §40-1 matter, under the laws of this state ; it shall be issued by the judge, justice, or any other officer before whom the attendance is required ; 3d. To require attendance before a commissioner appointed to take testimony by a court of any other state or county, it may be issued by any judge or justice of the peace, in places within their respective jurisdictions. 404. The service of a subpcena shall be made by showing the orig- inal, and delivering a copy, or a ticket containing its substance, to the witness personally, giving or offisring to him at the same time, if de- manded by him, the fees to which he is entitled for travel to and from the place designated, and one day's attendance there. Such service may be made by any person. 405. If a witness be concealed in a building or vessel so as to pre- vent the service of a sul)poena upon him, any court or judge, or any officer issuing the subpoena, may, upon proof by affidavit of the con- cealment and of the materiality of the witness, make ftn order that the sheriff of the county serve the subpoena ; and the sheriff shall serve it accordingly, and for that purnose may break into the building or ves- sel where the witness is concealect: \ ' ^ ' C 400. A person present in court, or before a judicial officer, may be re(|uired to testify, in the same manner as if he were in attendance upon a subpoena issued by such court or officer. 407. It shall be the duty of a witness, duly served with a sub- poena, to attend at the time appointed, with any papers under his con- trol required by the subpoena, to answer all pertinent and legal ques- tions ; and, unless sooner discharged, to remain till the testimony is closed. 1. A witness cnnnot be cross-examined except in reference to matters concerning which he has been examined in chief. — Thornhurgh v. Hand, 7 Cal., Jan. T. 2. T!ie admission of leading questions, in the examination of a witness, is always in the discretion of the court, subject however to be reviewed, and will not be regarded as error unless the discretion has been abused. — Dudlomj v. Van Nosiraiid, 24 Barii., 25. 408. A witness shall answer (questions legal and pertinent to the matter in issue, though his answer may establish a claim against him- §413 ATTENDANCE OF WITNESSES. 199 self ; but he need not give an answer which shall have a tendency to subject him to punishment for a felony ; nor need he give an answer Avhich shall have a direct tendency to degrade his character, unless it be to the very fact in issue, or to a fact from which the fact in issue would be presumed. But a witness shall answer as to the fact of his previous conviction for felony. 1. The opinions of a person, not an expert, arc not evidence. — Ecijnohh v. Jourdan, 6 Cal., 108. 2. Hearsay testimony to a fact admitted by both parties, may be given. — Williams V. ChaJhournc, 6 Cal., 559. 409. Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt by the court or officer issuing the subpoena, or requiring the witness to be sworn ; and if the witness be a party, his complaint may be dismissed or his answer stricken out. 410. A witness disobeying a subpoena shall also forfeit to the party aggrieved the sum of one hundred dollars, and all damages which he may sustain by the failure of the witness to attend ; which forfeiture and damages may be recovered i^ afcivfl. acti'on. 411. In case of failure of a witness to attend, the court or officer issumg the subpoena, upon proof of the service thereof, and of the fail- ure of the witness, may issue a warrant to the sheriff of the county to arrest the witness and bring him before the court or officer where his attendance was required. 412. If the witness be a prisoner, confined in a jail or prison with- in this state for any other cause than a sentence for felony, an order for his examination in the prison upon deposition, or for his temporary removal and production before a court or officer for the purpose of be- ing orally examined, may be made as follows : J St. By the court itself, in which the action or special proceeding is pending ; 2d. By a judge of the supreme court, district court, or county judge of the county where the action or proceeding is pending, if before a judge or other person out of court. 413. Such order can only be made upon affidavit, showing the na- 200 ATTENDANCE OF AVITNESSES. §414 ture of the action or proceeding, the testimony expected from the -wit- ness, and its materiaUtj. 414. If the witness be imprisoned in the county where the action or proceeding is pending, and for a cause other than a sentence for fel- ony, his production may be required. In all other cases, his examina- tion, when allowed, shall be taken upon deposition. 415. Every person who has been in good faith, served with a subpoena to attend as a witness before a court, judge, commissioner, referee, or other person, in a case where the disobedience of the wit- ness may be punished as a contempt, shall be exonerated from arrest, in a civil action, while going to the place of attendance, necessarily remaining there, and returning therefrom. 1. This section docs not exempt him from obeying any ordinary process of a court, e. g., to attend and answer concerning his property, under a supplementary writ. — Piuje V. Randall, 6 Cal., 32. 416. The arrest of a witness contrary to the last section, shall be void ; but an officer shall not be liable to the party for making the arrest in ignorance of the facts creating the exoneration, but shall be liable for any subsequent detention of the party, if such party claim the exemption and make an affidavit, stating : 1st. That he has been served with a subpoena to attend as a witness before a court, officer, or other person ; specifying the same, the place of attendance, and the action or proceeding in which the subpoena was issued; and, 2d. That he has not been thus served by his own procurement, with the intention of avoiding an arrest ; 3d. That he is at the time going to the place of attendance, or re- turning therefrom, or remaining there in obedience to the subpoena. The affidavit may be taken by the officer, and shall exonerate him from Uability for discharging the witness when arrested. §418 EXAMINATION OF PARTIES TO AN ACTION. 201 CHAPTER III. OF THE EXAMINATION OF PAKTIES TO AN ACTION OR PROCEEDING, AND OF PERSONS FOR WHOSE IMMEDIATE BENEFIT SUCH ACTION OR PROCEEDING IS PROSECUTED OR DEFENDED. 417. No action to obtain a discovery under oath, in aid of the pro- secution or defense of another action or proceeding, shall be allowed, nor shall any examination of a party be had on behalf of the adverse party, except in the manner prescribed by this chapter. 1. This section does not apply to prevent an examination of a debtor in a proceed- ing supplementary to an execution. — Dunham v. Aicholtson, 2 Sand., 636 ; Quick v. Keeler, ib., 231. 418. A party to an action or proceeding may be examined as a witness, at the instance of the adverse party, or of any one of several adverse parties ; and for that purpose may be compelled, in the same manner, and subject to the same rules of examination as any other witness, to testify at the trial, and he may be examined on a commis- sion. 1. A co-defend;.nt is not a competent witness, where his testimony would enure to his own benefit. He could show his co-defendant was not his partner. — Hotalinq \. Cronise, 2 Cal., 60 ; Beach v. Covillaud, ib., 237 ; Sparks v. Kohler, 3 Cal., 299 ; John- son V. Henderson, ib., 368 ; Buckhy v. Manife, ib., 441 ; Lucas v. Payne, 7 Cal., Jan. T. 2. "When not served with process in an action of trespass, he is still incompetent. — Gates V. Nash, 6 Cal., 192. 3. The examination of a defendant not sei-ved with process, as a witness, will not authorize the examination of a plaintifi" as a witness on behalf of himself and his co- plaintiffs. — Robinson v. Frost, 14 Barb., 536. 4. This does not authorize the examination of a party except as a witness at the trial of an issue in the action, or upon commission, his testimony to be read on the tri- al. On a motion, e. g., to vacate an order of arrest, this order to examine should not be granted. — Huelinv. Ridner, 6 Abbott, 19. 5. Where the plaintiff is called by defendant, his testimony in a former suit, directly contrary to his present evidence, may be given as an admission, on the trial. — Pickard V. Collins, 23 Barb., 444. 6. In an action for a tort against two or more defendants, each defendant is a com- petent witness for his co-defendant. 7. As to what matters upon which he may give evidence, discussed. — Beal v. Finch, 1 Kern, 128. N 202 EXAMIXATIOX OF PARTIES TO AX ACTION. §419 8. Under the code a defendant cannot be examined by a co-defendant to establish usury as a defense to their joint promissory note. — Ely v. Miller, 1 Abbott, 241. 9. A party to a suit who is made a witness by statute, is to become such under the same requisitions and restrictions as any other witness. — Arnold v. Arnold, 13 Verm., 370. 10. The declarations and conduct of the seller and buyer are competent testimony to show fraudulent intent. — Landecker v. Houfjhtaling, 7 Cal., April T. ; Visher v. TFe6- ster, ib., July T. 419. The examination of a party thus taken, may be rebutted by adverse testimony. 420. If a party refuse to attend and testify at the trial, or to give his deposition before trial, or upon a commission "when required, his complaint, answer or reply, may be stricken out, and judgment be tak- en against him ; and he may be also, in the discretion of the court, proceeded against as in other cases for a contempt. 421. A party examined by an adverse party, as in this chapter provided, may be examined on his own behalf in respect to any matter pertinent to the issue. But if he testify to any new matter not respon- sive to the inquiries put to him by the adverse party, or necessary to explain or qualify his answer thereto ; or discharge, when his answer would charge himself, such adverse party may offer himself as a wit- ness on his own behalf, in respect to such new matter, and shall be so received. 1. The party so offering to be a witness for himself, must only explain the new matter, and no more. — Dicinelle v. Ilenriquez, 1 Cal., 387. 2. "When a party testifies that he executed a promissory note described, he charges himself and may show that he has since paid the note. — Jones v. Love, 8 Cal., Jan. T. 3. Where a party called, testifies to independent matter in his own behalf, the court is not bound to believe him and decide according to his testimony. — Roberts v. Gee, 15 Barb., 449. 4. Where a plaintiff calls the defendant as a witness to prove the plaintiff's claim, and the defendant on a cross-examination in his own behalf proves a coimfcr claim as set up in his answer, the plaintiff may be examined in reference to the evidence given by the defendant, on the subject of the counter claim. — Harpelly. Irmn, 1 Abbott, 144. 5. The defendant was examined by the plaintiff on the trial ; after which being ex- amined upon his own behalf, he testified to a counter claim that existed previous to the indebtedness upon which the action was brought, and the plaintiff was properly admit- ted to testify as to the new matter. — Aitonijmous, 3 Abbott, 102. 422. A person for whose immediate benefit the action is prosecuted §427 AFFIDAVITS. 203 or defended, though not a party to the action, may be examined as a witness, in the same manner, and subject to the same rules of examina- tion as if he were named as a party. 423. [1854.] Parties may be witnesses on their own behalf when the action is brought for the settlement of, or in relation to, the busi- ness and accounts of a copartnership then existing or which had pre- viously existed between them, to prove vouchers or items of account under one hundred dollars. CHAPTER IV. ON AFFIDAVITS. 424. An affidavit to be used before any court, judge, or officer of this state, may be taken before any judge, or clerk of any court, or any justice of the peace, or notary pubhc in this state. I. Affidavits of the loss of an instrument, &c., to be used in court, may be taken ex parte, without notice. — McCann v. Beach, 2 Cal., 25. 425. An affidavit taken in another state of the United States, to be used in this state, shall be taken before a commissioner appointed by the governor of this state, to take affidavits and depositions in such other state, or before any judge of a court of record having a seal. 426. An affidavit taken in a foreign country to be used in this state, shall be taken before an ambassador, minister, or consul of the United States, or before any judge of a court of record having a seal, in such foreign country. 427. When an affidavit is taken before a judge of a court in an- other state, or in a foreign country, the genuineness of the signature of the judge, the existence of the court, and the fact that such judge is a member thereof, shall be certified by the clerk of the court, under the seal thereof. S//!-^ 204 DEPOSITIONS TAKEN IN THIS STATE. §428 CHAPTER V. OF DEPOSITIONS TAKEN IN THIS STATE. 428. The testimony of a -vv-itness in this state, may be taken by deposition in an a'ction, at any time after the service of the summons or the appearance of the defendant ; and in a special proceeding, after a question of fact has arisen therein, in the folloAving cases : 1st. "When the witness is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prose- cuted or defended ; 2d. When the -witness resides out of the county in which his testi- mony is to be used ; 3d. When the witness is about to leave the county where the action is to be tried, and will probably continue absent when the testimony is required, 4th. When the witness, otherwise liable toattend the trial, is never- theless too infirm to attend. 1. Taking testimony by depositions is in derogation of the common law, and must not only be done before the proper officer, but every requirement of the law must be complied with. — McCann v. Beach, 2 Cal., 25 ; Di/e v. Bailey, 2 Cal., 383 ; Dwindle v. Howland, 1 Abbott, 87. 2. A motion at the trial to suppress the whole of a deposition, on the ground that some of the interrogatories and parts of the deposition are improper, should be denied. If any part of the deposition is competent, the objection should be confined to that which is not so. — Gommercial Bank of Pennsi/lvania v. L^nioii Bank of New York, 1 Kern., 203. 3. 3d. On the trial it iof examination, together with a copy of an affidavit, showing'^that the case"T5~t>»e.4ucntioned in the last section. Such notice shall be at least five days, andSiwiddition, one day for every twenty-five mile^of the distance of the placcbf examination from the residence of the pprson to whom the notice is given, unless for a cause shown, a judge, l^y order, prescribe a shorter jtmie. When a §430 DEPOSITIONS TAKEN IN THIS STATE. 205 shorter time is prescribed, a copy of the order shall be served with the notice. 1. An order to take testimony by deposition should specify the notice to lie given to the adverse party, otherwise it oufrht not to be read in evidence. — Ellis v. Jaszijnsky, ~7~~, 5Cal.,444.*/^ C^fr^-.tc f.^^ ^ ^^ A.< ^ A. r.^<^.r.^U^ ^^< ^ 2. It is no ground for the exclusion of a deposition that it was noticed to be taken before the county judge, but was taken before the county clerk. — WilUitms v. Chad- bourne, 6 Cal., 559. 3. Notice of time and place having been given, it is a matter of no importance who took the deposition. — lb. 4. A party appearing at the time and place, and cross-examining the witness, waives whatever objection may be had because the notice is too short. — Jones v. Imiw, 8 Cal., Jan. T. 430. Either party may attend such examination, and put such questions, direct and cross, as may be proper. The deposition, when completed, shall be carefully read to the witness, and corrected by him in any particular, if desired ; it shall then be subscribed by the wit- ness, certified by the judge or officer taking the deposition, inclosed in an envelope or wrapper, sealed, and directed to the clerk of the court in which the action is pending, or to such person as the parties in writing may agree upon, and either delivered by the judge or offi- cer to the clerk or such person, or transmitted through the mail, or by some safe piivate opportunity ; and thereupon such deposition may be used by either party upon the trial, or other proceeding, against any party giving or receiving the notice, subject to all legal exceptions. But if the parties attend at the examination, no objection to the form of an interrogatory shall be made at the trial, unless the same was stated at the time of the examination. If the deposition be taken by the reason of the absence or intended absence from the county, of t ■witness, or because he is too infirm to attend, proof by affidavit or or testimony shall be made at the trial, that the witness continues ab- sent or infirm, to the best of the deponent's knowledge or belief. The deposition thus taken may also be read in case of the death of the witness. 1. Where a deposition is taken ex parte, though after notice, and the witness is therefore not subjected to a cross-examination, the language used by him will be sus- piciously regarded, and only a very literal interpretation given to it. — Spritirj v. Hill, 6 Cal., 17. * 2. The certificate must state that the deposition was read to the witness before sign- ing ; it must comply with the statute. — Williams v. Chadbourne, 6 Cal., 559. 206 DEPOSITIONS TAKEN OUT OF THE STATE. §431 431. When a deposition has been once taken, it may be read in any stage of the same action or proceeding by either party, and shall then be deemed the evidence of the party reading it. CHAPTER VI. OF DEPOSITIONS TAKEN OUT OF THIS STATE. 432. The testimony of a witness out of the state may be taken by deposition in an action at any time after the service of tho summons, or the appearance of the defendant ; and in a special proceeding, at any time after a question of fact has arisen therein. 1. Diligence must be exercised in applying for a commission. — Pierfon v. Uolbrooh, 2 Cal., 598. 2. The proper time to object to such deposition is when it is offered in evidence. — Mills V. Dunlap, 3 Cal., 94. 3. It is also admissible, notwithstanding the witness may have retui ned to the state since his examination, if he is not within the state at the time of the ti ial. — Markoe v. Aldrich, 1 Abbott, 55. 4. On the execution of a commission, the parties have a right to appear by counsel. Cross interrogatories cannot be withdrawn unless by mutual consent. A witness can- not shield himself from answering a cross interrogatory, by a rcfcrenco to his previous answer to a direct one. — Union Bank v. Torrei/, 2 Abbott, 269 ; 5 Ducr, 626. 5. This provision is an innovation upon the common law, and must be strictly exer- cised. — Creamer V. Jackson, 4 Abbott, 413. 433. The deposition of a Avitness out of this state shall be taken upon commission issued from the court, under the seal of the court, upon an order of the judge, or court, or county judge, on the applica- tion of either party, upon five days' previous notice to the other. It shall be issued to a person agreed upon between the parties, or if they do not agree, to any judge or justice of the peace selected by the offi- cer granting the commission, or to a commissioner appointed by the governor of this state, to take affidavits and depositions in other states, (a) (rt) Statutes of 1858, 22. 1. The first section of an act entitled " An act empowering the governor to appoint commitisioners of deeds, and defining the duties of such officers," passed March 20th, 1850, is hereby amended so as to read as follows: The gorernor may, when in his ^38 PROCEEDINGS TO PERPETUATE TESTIMONY. 207 434. Such proper interrogatories, direct and cross, as the respec- tive parties may prepare, to be settled, if the parties disagree as to their form, by the judge or officer granting the order for the commis- sion, at a day fixed in the order, may be annexed to the commission ; or, when the parties agree to that mode, the examination may be with- out written interrogatories. 435. The commission shall authorize the commissioner to adminis- ter an oath to the witness, and to take his deposition in answer to the interrogatories, or, when the examination is to be without interrogato- ries, in respect to the question in dispute ; and to certify the deposition to the court, in a scaled envelope directed to the clerk, or other person designated or agreed upon, and forwarded to him by mail, or other usual channel of conveyance. 1 . An appeal does not lie from an order refusing to grant a commission to take tes- timony. — People V. Stillman, 7 Cal., Jan. T. 2. The commission is defective if there is not a seal attached. — Whitney v. Wyncoop 4 Abbott, 370. 436. A trial, or other proceeding, shall not be postponed by reason of a commission not returned, except upon evidence satisfactory to the court, that the testimony of the witness is necessary, and that proper diligence has been used to obtain it. CHAPTER VII. OF PROCEEDINGS TO PERPETUATE TESTIMONY. 437. The testimony of a witness may be taken and perpetuated as / &6''j provided in this chapter. <.^ 438. The appUcant shall produce to a district judge, or to a coun- ^^ ^' ty judge, an affidavit stating : judgment it may be necessary, appoint in each of the United States, and in each of the territories and districts of the United States, and in each foreign state, territory, and rt- colony, one or more commissioners, to continue in office four years, unless removed by "^ H S p the governor. Every such commissioner shall have power to administer oaths, and to ^i 5- taJce depositions and affidavits, to be used in this state; and also to take the acknowledg- ment or proof of any deed or other instrument to be recorded in this state. 208 PROCEEDINGS TO PERPETUATE TESTIMONY. §439 I k^ (1st. That the applicant expects to be a partjto an action in a court in this state ; 2d. That the testimony of a witness residing in this state, whose place of residence is stated, is necessary to the prosecution or defense of such action ; and generally the facts expected to be proved ; 3d. That the party named, who is expected to be adverse to the applicant, resides or is at the time in this state. The judge may, thereupon, in his discretion, make an order allowing the examination, and prescribing how long before the examination the order and notice of the time and place thereof shall be served. 1. It must be made to appear to the juclfxe that the ohject is in good faith, to per- petuate testimony. — Puton v. Wtstervelt, 5 How. Pr., 399. 439. Upon proof of personal service upon the person who is ex- pected to be the adverse party, of the order, copy of the affidant, and of a notice that the examination will be taken before a district judge, or county judge of the county wherein the witness resides, or may be at a specified time and place, such judge may take a deposition of the witness, and the examination may, if necessary, be adjourned from time to time. 440. The examination shall be by question and answer, unless the parties otherwise agree. The deposition, when completed, shall be carefully read to and subscribed by the witness, then certified by the judge, and immediately thereafter filed in the office of the clerk of the county where it was taken, together with the order for the examination of the witness, the affidavit on which the same was granted, and the affidavit of service of the affidavit, order, or notice. 441. The affidavits filed ^vith the deposition, or a certified copy thereof, shall be primary evidence of the facts stated therein, to show compliance with the provisions of this chapter. 442. If a trial be had between the persons named in the affidavit as parties expectant, or their successors in interest, upon proof of the death or insanity of the Avitness, or of his inability to attend the trial by reason of age, sickness, or settled infirmity, the deposition, or a cer- tified copy thereof, may be used by cither party, subject to all legal objections. But if the parties attend at the cxamhiation, no objection §445 OATHS AND AFFIRMATIONS. 209 to the form of an interrogatory shall be made at the trial, unless the '__2^ same was stated at the time of the examination. CHAPTER VIII. ADMINISTRATION OF OATHS AND AFFIRMATIONS. 443. Every court of this state, every judge or clerk of any court, every justice of the peace, and every notary public, and every officer authorised to take testimony, or to decide upon evidence in any pro- ceeding, shall have power to administer oaths or affirmations, {a) 444. When a person is sworn who believes in any other than the christian rehgion, he may be sworn according to the peculiar ceremo- nies of his religion, if there be any such. 445. Any witness who desires it may, at his option, instead of tak- ing an oath, make his solemn affirmation or declaration, by assenting, when addressed, in the following form : " You do solemnly affirm that the evidence you shall give in this issue, (or matter,) pending between and , shall be the truth, the whole truth, and nothing but the truth." Assent to this affirmation shall be made by the an- swer, " I do." A false affirmation or declaration shall be deemed per- jury, equally with a false oath. {a) Statutes of 1852, 106. An act concerning the administration of oaths, passed May 1, 1852. 1. That all officers of this state, authorised by law to administer oaths or affirma- tions, may certify the same under their hands, without affixing to such certificate their seals of office. 2. That all oaths or affirmations heretofore administered by any officer of this state, and by him certified under his hand, without his seal of office, shall be as effectual for all purposes as if such seal had been affixed to such certificate. 210 INSPECTION OF DOCUMENTS. §446 CHAPTER IX. INSPECTION OF DOCUMENTS, AND MISCELLANEOUS PROVISIONS AS TO RECORDS AND WRITINGS. 446. Any court in -which an action is pending, or a judge thereof, or a county judge, may, upon notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of any book, document, or paper, in his possession, or under his control, containing evidence relating to the merits of the action, or the defense therein. If compliance with the order be refus- ed, the court may exclude the book, document, or paper, from being given in evidence ; or if wanted as evidence by the party applyuig, may direct the jury to presume it to be such as he alleges it to be : and the court may also punish the party refusing for a contempt. This section shall not be construed to prevent a party from compelling an- other to produce books, papers, or documents, when he is examined as a witness. 1. The court is authorized to make an order directing a party to produce books and papers in court. — Barnstead v. Empire Mining Co., 5 Cal., 299. 2. The court has the power, in any case where either ])arty has in his possession or power papers, books, or documents containing evidence bearing upon the merits of the action, to compel sucli party to exhibit the same to the adverse party, if deemed prop- er. — Powers V. Ebnendorf, 4 How. Pr., 60. 3. An order for discovery may be enforced before issue joined in the cause. — Miller V. Mather, 5 ib., 160. 4. An application for discovery or inspection must be made upon petition. — Dole v. Fellows, ib., 451. 5. Where the president, or other officer of a corporation, has no such property in, or control over, the books of the corporation, as gives him the right, or makes it his duty, to produce them under a duces tecum, the proper remedy of the opposite party is to obtain sworn copies, or an inspection and review. — LaFargey. La FargelnS. Co., 14 ib., 26. 6. ■\Vlicrc, ujion a motion to vacate an order for discovery, made under this section, the party denies positively, under oath, tiie jiosscssion of the books, &o., ordered to be produced, the order must bo vacated. — Ahoj/kc v. Wolcott, 4 Abbott, 41 ; Bradstreet v. Bailey, ib., 233. 447. There shall be no evidence of the contents of a writing, other than the writing itself, except in the following cases : §447 INSPECTION OF DOCUMENTS. 211 1st. When the origmal has been lost or destroyed ; in which case proof of the loss or destruction shall first be made ; 2d. "When the original is in possession of the party against whom the evidence is offered, and he fails to produce it, after reasonable notice ; 3d. When the original is the record, or other document, in the cus- tody of a public officer ; 4th. When the original has been recorded, and a certified copy of the records is made evidence by statute ; 5th. When the original consists of numerous accounts or other doc- uments, which cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole. 1 . The best evidence the nature of the case is susceptible of must be adduced. — McCann v. Beach, 2 Cal., 25 ; Macy v. Goodwin, 6 Cal., 579. 2. Proof of the loss of an instrument may be made by a party's own affidavit, to lay the foundation for proving its contents. But the affidavit of a third person, that a trunk of the party, containing his papers, is lost, is insufficient, without showing that it con- tained the papers in question. But this the party may show by his own oath. — lb. 3. In the case of lost instruments, where no copy has been preserved, it is not to be expected that witnesses can recite their contents, word for word. — Posten v. Rassette, 5 Cal., 467. 4. Mere evidence of search is not sufficient, for the search may not have been dili- gent. — Fohom's ex'rs v. Scott, 6 Cal., 460. 5. Proof of loss of receipts, without proof of their genuineness, is not a sufficient pre- dicate for the admission of evidence as to their contents. — Reynolds v. Jourdan, 6 Cal., 108. 6. One of the plaintiffs can be introduced as a witness to prove the loss and de- struction of certain mining rules and regulations, as a predicate to the introduction of secondary evidence, to prove their contents. — Grass Valley Quartz Co. v. Stackhouse, 6 Cal., 413. 7. Where an original instrument, proved to be lost, has been recorded, it is error to admit parol evidence of its contents, unless the failure to produce the record is ac- counted for. — Brotherton v. Hart, 6 Cal., 488. 8. The judgment book, containing the record of the judgment in the former suit, was destroyed. It would be improper, even admitting it could be done, to have admit- ted parol evidence of the pleadings and issues between the parties, unless the appellant had also been prepared to introduce a certified copy of the judgment. — Wines v. Johnson, 7 Cal., Jan. T. 9. The cause or motive for the destruction of the instrument, when voluntarily made, must determine the admissibility of secondary evidence. — Bagley v. Eaton, 8 Cal., April T. 10. The defendant, in a suit pending, may be made to discover books, papers, and 212 INSPECTION OF DOCUMENTS. §448 documents in hif5 possession or power, relating to the merits thereof, and which are nec- essary to the plaintiff, to enable him to prepare for the trial. — Gould v. McCarty, 1 Kern., 575. 11. Parol evidence is admissible to explain the meaning of characters, marks, and technical tenns used in a particular business. — Danny. Fiedler, 2 Kern., 40. 12. Where two letters were written simultaneously, signed by the same individual, containing the same words, and addressed to the same person, one being sent to the person addressed, and the other retained by the writer, each is an original, and the one retained may be given in evidence, without proving any notice to produce the other. — Hubbard v. Russell, 24 Barb., 404. 448. The party producing a writing as genuine, which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, and such alteration is not noted on the writing, shall account for the appearance or alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made. If he do that, he may give the writing in evidence, but not otherwise. 1 . A card published in a newspaper, without the knowledge of either party to the suit, is no evidence but to impeach the credibility of a witness. — Dicinelle v. Ilenriquez, 1 Cal., 387. 2. It is error to admit letters in evidence, without proving that they were written by the party intended to be charged by their contents. — Sinclair v. Wood, 3 Cal., 98. 3. To prove handwriting of a subscribing witness, he must be shown to be beyond the jurisdiction of the court, or that diligent search for him had been made without avail. — Powell's Heirs v. Hendricks, 3 Cal., 427. 449. A judicial record of this state, or of the United States, may be proven by the production of the original, or a copy thereof, certified by the clerk, or other person having the legal custody thereof, under the seal of the court, to be a true copy of such record, (a) See Sec. 655. (a) Statutes of 1857, 103. An act concerning evidence, passed March 26th, 1S57. 1. Whenever the public records, books or papers in the "custody" of any col- lector of customs of the United States, or of the register or receiver of any land office of the United States within this state, or in the office of the surveyor general of the United States for the state of California, or in the office and in the custody of the clerk of the circuit, or any district court of the United States for the state of California, shall bo required as evidence in any court of this state, copies of such records, books or papers, §450 INSPECTION OF DOCUMENTS. 213 450. [1854.] The records and judicial proceedings of the Courts of anj other State of the United States, may be proved or admitted in the courts of this State, by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the duly certified by the proper officer under his Imiid and official seal, where he has a seal, shall be received in evidence with the same force and effect as the originals. Statutes of 1857, 317. A71 act concerning certified copies of certain instrume7its in loriting, passed April 29th, 1857. 1 . Copies of all papers lately belonging to the United States board of commis- sioners for the settlement of private land claims in California, and on file in the office of the surveyer general of the United States for the state of California, and all copies of docmnents and papers belonging to said sm'veyor's office, which copies shall have been duly certified to be true copies by said surveyor, shall be received and read in evi- dence in the same manner and with like effect as the originals. 2. Duly certified copies of deeds regularly recorded upon the acknowledgment or proof of execution by the party or parties thereto, subject however, to all the legal ex- ceptions that might be taken to the original if produced, shall be received iu evidence in all the courts of this state, without any further or other proof of the execution thereof, in the same manner and with like effect as if the originals were produced and proven ; provided, it be shown that the said originals are not under the control of the party offer- ing the said copies, or are lost. 3. Any person wishing, in order to obtain the benefit of this act, to establish the genuineness of any patent for land issued by the United States, or by this state, may apply for that purpose to the district court of the judicial district in which the patented lands, or any part thereof, are situated, after giving public notice of the time of his making said application, at least five days previous to the hearing thereof, either by one insertion in a newspaper, where there is one published in the county wherein the lands or parcels of land in said district may be situated, or in default thereof, by posting said notice on the court house door of said county; provided, that notice shall not be required to be given in more than one county ; upon proof being made that the said notice was duly given, the district court shall proceed to inspect the patent, and upon being satisfied that it is genuine may endorse thereupon or annex thereto, an order under the seal of the court, declaring said patent to be genuine ; and if the court be not satisfied tliat the said patent is genuine, then no other [order] shall be entered or made relative thereto. 4. It shall be the duty of the county recorder of each county in this state to pro- vide a separate book to be called " The Record of Patents," wherein shall be recorded all patents of land or parcels of land situate in their county, whether issued by the United States or the state of California, which may be offered for record, authenticated as in the foregoing section mentioned ; and a duly certified copy of any patent re- corded as aforesaid, may be offered in evidence in any proceeding or action in tliis state, with tlie same effect and force as the original duly exhibited and proven. 214 IXSPECTIOX OF DOCUMENTS. §451 judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. 1. A certificate of exemplification of a judgment rendered in another state, when attested by the clerk, under the seal of the court, and ■where the presiding judge of the court certifies that the attestation is in due form of law, is sufficient, under the act of Congress of May 26th, 1790, to sustain an action upon the judgment in another state. Thompson v. Manrow, 1 Cal., 428. 2. The legislature cannot require a greater amount of proof than that prescribed l>y Congress, but may require less. — Parke v. Williams, 7 Cal., Jan. T. 451. A judicial record of a foreign country maybe proved by the production of a copy thereof, certified by tlie clerk, with the seal of the court annexed, if there be a clerk and seal ; or by the legal keeper of the record, with the seal of his office annexed, if there be a seal, , to be a true copy of such record : together -^-ith a certificate of a judge of the court, that the person making the certificate is the clerk of the court, or the legal keeper of the record, and in either case, that the signature is genuine, and the certificate in due form ; and also together with the certificate of the minister or embassador of the United States, or of a consul of the United States, in such foreign country, that there is such a court, specifying generally the nature of its jurisdiction, and verifying the signature of the judge and clerk, or other legal keeper of the record. 452. A copy of the judicial record of a foreign country shall also be admissible in evidence upon proof: 1st. That the copy ofiered has been compared by the witness with the original, and is an exact transcript of the whole of it ; 2d. That such original Avas in the custody of the clerk of the court, or other legal keeper of the same ; and 3d. That the copy is duly attested by a seal, which is proved to be the seal of the court where the record remains, if it be the record of a court ; or if there be no such seal, or if it he not the record of a court, by the signature of the legal keeper of the original. See Sec. 655. 45o. Printed copies, in volumes, of statutes, code, or other written law, enacted by any other state, territory, or foreign government, pur- porting or proved to have been pul)lishcd by the authority thereof, or proved to be commonly admitted as evidence of the existing law, in §456 CERTIORARI. 215 the courts and judicial tribunals of such state, territory or government, shall be admitted by the courts and officers of this state, on all occa- sions, as presumptive evidence of such laws. See See. 655. 454. A seal of a court or public office, when required to any writ or process, or proceeding, or to authenticate a co])y of any record or document, may be impressed with wax, wafer, or any other substance, and then attached to the writ, process or proceeding, or to the copy of the record or document, or it may be impressed on the paper alone. 1. Tlie impression of the seal maybe made upon paper only. — Connolhj v. Goodwin, 5 Cal., 220 ; Ross v. Bedell, 5 Diier, 462. TITLE XII. OF THE WRIT OF CERTIORARI AND OF MANDAMUS. CHAPTER I. THE WaiT OF CERTIORARI, OR REVIEW. 455. The writ of certiorari may be denominated the writ of review. 456. This w-rit may be granted on apphcation, by any court of this state, except a justice's, recorder's, or mayor's court : the writ shall be granted in all cases when an inferior tribunal, board or officer, exercis- ing judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy. See Sec. 653. 1 A review and not a mandate should issue to a district court to send up docu- ments where no appeal would lie. — Field v. Turnef, 1 Cal., 152. 2. When the -writ will lie. — Ex parte Hanson, 2 Cal., 262. 3. A review to the board of supervisors on the ground of want of jurisdiction, is premature if taken before the action of the board. — Wilson v. Supervisors of Sacramento Co., 3 Cal., 386. 216 CERTIORARI. §457 4. A party against whom a judgment is sought to be enforced, although not a party to the mandate, may apply for a writ of review. — Clary v. Iloagland, 5 Cal., 47G. 5. When the county court may issue a writ of review. — lb. 6. To the exercise of this power it is not necessary that the court issuing the wTit, should possess appellate jurisdiction. — Chard v. Uwrison, 7 Cal., Jan. T. 7. A district court can issue a writ to compel a board of supervisors, though only a quasi judicial body, to certify their proceedings to such court for review. — People v. Su- pervisors of El Dorado Co., 7 Cal., July T. ; overruling People v. Hester, 6 Cal., 679. 8. The writ of review should not be allowed at the instance of an individual to re- view proceedings for the levying a tax or assessment which affects a considerable num- ber of persons. — Wilson v. Maijor of New York, 1 Abbott, 4 ; Ex parte Fiftij-first St., 3 ib., 232. 9. A writ of review stays the proceedings of the officer or court to which it is ad- dressed.— -Exj^arte Conover, 5 ib., 182 ; 24 Barb., 636 ; 14 How. Pr., 348. 10. The writ is generally allowed as a matter of course, unless it is apparent great injustice will be done by granting it. — Ptojjle v. Peahodij, 5 Abbott, 194. 1 1 . When it appears the writ was granted before the proceedings reviewed by it were terminated, it is the duty of the court to direct a supersedeas of the writ to be enter- ed.— 76. 457. The application shall be made on affidavit bj the party bene- ficially interested, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause ■why it should not be allowed, or may grant the writ without notice. 458. The writ may be directed to the inferior tribunal, board or officer, or to any other person having the custody of the record or pro- ceedings to be certified. When directed to a tribunal, the clerk, if there be one, shall return the writ with the transoript required. 459. The writ of review shall command the party to whom it is directed to certify fully to the court issuing the writ, at a specified time and place, and anne.x to the writ a transcript of the record and proceedings, (describing or referring to them, with convenient certain- ty,) that the same may be reviewed by the court : and requiring the party in the mean time to desist from further proceedings in the mat- ter to be reviewed. 400. If a stay of proceedings be not intended, the words requiring the stay shall be omitted from the writ ; these words may be inserted or omitted in the sound discretion of the court ; but if omitted, the power of the inferior court or officer shall not be suspended, nor the proceedings stayed. §467 MANDATE. 217 461. The writ shall be served in the same manner as a summons in civil action, except when otherwise expressly directed by the court. 462. The review upon thi? writ shall not be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer. 463. If the return of t];ie writ be defective, the court may order a further return to be made. ^ When a full return has been made, the court shall proceed to heaii the parties, or such of them as may attend for that purpose, and may thereupon give judgment, either affirming, or annulling, or modifying the proceedings below. See Sec. 25, p. 15. ^. - 464. A copy of the judgment, signed by the clerk, shall be trans- mitted to the inferior tribunal, board, or officer having the custody of the record or proceeding certified up. 465. A copy of the judgment, signed by the clerk, entered upon, or attached to, the writ and return, shall constitute the judgment roll. If the proceeding be had in any other than the supreme court, an ap- peal may be taken from the judgment in the same manner, and upon the same terms, as from a judgment in a civil action. 1. For costs on writ of review, see Sec. 508. CHAPTER II. THE WKIT OF MANDATE, OR MANDAMUS. 466. The writ of mandamus may be denominated the writ of man- date. 467. It may be issued by any court in the state, except a justice's recorder's or mayor's court, to any inferior tribunal, corporation, board or person, to compel the performance of an act, which the law specially •enjoins, as a duty resulting from an office, trust, or station ; or to com- pel the admission of a party to the use and enjoyment of a right, or office to which he is entitled, and from which he is unlawfully preclud- ed by such inferior tribunal, corporation, board, or person. See Sec. 65.3. 218 JIAXDATE. §468 1. The supreme court may exercise its jurisdiction by mandate. — People v. Turner, 1 Ciil., 143. 2. Mandate is proper to compel a district court to restore an attorney to the roll. — 76. 3. Judgment may be affirmed as to mandate, and reversed as to costs. — McDougal V. Roman, 2 Cal., 80. 4. A mandate lies to compel a judge of a district court to enter judgment on a ref- eree's report. — Russell v. Elliott, 2 Cal., 245. 5. A mandate will not lie to compel an inferior court to issue process. — Peralta v. Adams, 2 Cal., 594 ; Adams v. Town, 3 Cal., 247. " '^^ ^t^ '' />^ j + quired to be performed, or to show cause before the court, at aspeci- fied ^time an d _ place , why he has not done so. The peremptory writ shall be in a similar form, except that the words requiring the party to show cause why he has not done as commanded, shall be omitted, and a return day shall be inserted. 1. A demurrer does not lie to an alternative writ of mandamus. — People v. Harris, 6 Alibott, 30. 470. When the application to the court is made without notice to the adverse party, and the writ be allowed, the alternative shall be first issued ; but if the application be upon due notice, and the writ be allowed, the peremptory may be issued in the first instance. The notice of the apphcation, when given, shall be at least ten days. The writ shall not be granted by default. The case shall be heard by the court, whether the adverse party appear or not. 471. On the return of the alternative, or the day on which the ap- phcation of the writ is noticed, or such further day as the court may allow, the party on whom the writ or notice may have been served, may show cause by answer under oath, made in the same manner as an answer to a complaint in a civil action. x/ 472. If an answer is made, which raises a question as to a matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of the allegation of which the application for the writ is based, the court may, in its discretion, order the question to be tried before a jury, and post- pone the argument until such trial can be had, and the verdict certi- fied to the court. The question to be tried shall be distinctly stated in the order for trial, and the county shall be designated in which the same shall be had. The order may also direct the jury to assess any damages which the applicant may have sustained, in case they find for him. Sec Sec. 25, p. 15. 1. If a mandate is applied for, to compel a judge to sign a bill of exceptions, and he replies he has signed one, and it becomes a question of fact whether he signed a correct 220 MANDATE. §473 one or not ; that is not snch a question of fact as should be submitted to a jury. — Peo- ple V. Judijt of the Tenth Judicial District, 8 Cal., Jau T. 473. On the trial, the apphcant shall not be precluded hj the an- swer of any valid objection to its sufficiency, and may countervail it by proof, either in direct denial, or by way of avoidance. 474. If either party be dissatisfied with the verdict of the jury, he may move for a new trial upon a statement prepared as provided in section one hundred and ninety-five. The motion for a new trial may, upon a reasonable notice, be brought on before the judge of the court in which the cause was tried, either in term or vacation. If a new trial be granted, the jury shall, within five days thereafter, unless the parties agree on a longer time, be summoned to try the isssue. After a second verdict in favor of the same party, a new trial shall not be had. 475. If no notice for a new trial be given, or if given, be denied, the clerk, within five days after the rendition of the verdict or denial of the motion, shall transmit to the court in which the application for the writ is pending, a certified copy of the verdict attached to the order of trial ; after which, either party may bring on the argument of the apphcation, upon reasonable notice to the adverse party. 47G. If no answer be made the case shall be heard on the papers of the a})plicant. If an answer be made which does not raise a ques- V tion such as is mentioned in section four hundred and seventy-two, but only such matters as may be explained or avoided by a reply, the court may, in its discretion, grant time for replying. If the answer, or answer and reply, raise only questions of law, or put in issue imma- terial statements, not afiecting the substantial rights of the parties, the court shall proceed to hear, or fix a day for hearing the argument of the case. 477. If judgment be given for the applicant he shall recover the damages which he shall have sustained, as found by the jury, or as may be determined by the court, or referee, upon a reference to be ordered, together with costs ; and for such damages and costs an exe- cution may issue ; and a peremptory mandate shall also be awarded without delay. I §480 CONTEMPTS. 221 478. The writ shall be served in the same manner as a summons in a civil action, except when otherwise expressly directed by ordei- of the court. 479. When a peremptory mandate has been issued and directed to an inferior tribunal, corporation, boai'd, or person, if it appear to the court, that any member of such tribunal, corporation, or board, or such person, upon whom the writ has been personally served, has, without just excuse, refused or neglected to obey the same, the court may, upon motion, impose a ifine not exceeding one thousand dollars. In case of persistence in a refusal of obedience, the court may order the party to be imprisoned for a period not exceeding three months, and may make any orders necessary and proper for the complete enforce- ment of the writ. If a fine be imposed upon a judge or officer who draws a salary from the state or county, a certified copy of the order shall be forwarded to the comptroller, or county treasurer, as the case may be, and the amount thereof may be retained from the salary of such judge or officer. Such judge or officer, for his willful disobedi- ence shall also be deemed guilty of a misdemeanor in office. TITLE XIII. OF CONTEMPTS AND THEIR PUNISHMENTS. 480. The following acts or omissions shall be deemed contempts : 1st. Disorderly, contemptuous, or insolent behavior towards the judge whilst holding court, or engaged in his judicial duties at cham- bers, or towards referees or arbitratoi-s whilst sitting on a reference or arbitration, tending to interrupt the due course of a trial, reference or arbitration, or other judicial proceeding ; 2d. A breach of the peace, boisterous conduct, or violent disturb- ance in presence of the court, or its immediate vicinity, tending to interrupt the due course of a trial, or other judicial proceeding ; 3d. Disobedience or resistance to any lawful writ, order, rule or process, issued by the court or judge at chambers ; 222 CONTEMPTS. §481 4tli. Disobedience of a subpoena duly served, or refusing to be sworn or answer as a witness ; otli. Rescuing any person or property in the custody of any officer, by virtue of an order of process of such court or judge at chambers. 1. 3d. The power of the court to punish as for a criminal contempt, " willful disobe- dience," should not be exercised unless the acts constituting the alleged contempt are clearly proved and constitute a positive violation of the plain terms of the process or order. — Weeks v. Smith, 3 Abbott, 211. 2. The court has the inherent powerin a general sense of punishing as for contempt, disobedience to orders made by judges out of court. — Wiclces v. Dresser, 4 Abbott, 93 ; 13 How. Pr., 331. 3. 4th. A person cannot be deemed guilty of contempt for disobedience to the pro- cess of the court, who trespasses upon a party ^ut in possession under execution, as the authority of the court has then ceased. — Loriiuj v. Illslei/, 1 Cal., 24. 481. When a contempt is committed in the immediate view and presence of the court, or judge at chambers, it may be punished sum- marily ; for which an order shall be made, reciting the facts as occur- ring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be / <^T . punished as therein prescribed. When the contempt is not committed in the immediate view and presence of the court, or judge at chambers, an affidavit shall be presented to the court, or judge, of the facts con- stituting the coutem[)t, or a statement of the facts by the referees or arbitrators. 1. Courts are exclusive judges of their own contempts, but a party cannot be im- prisoned for neglecting or refusing to do what appears to be out of his power to per- form. — Adams v. Uasktll, 6 Cal., 31G; Ex parte Cohen, ib., 318; People v. Turtier, 1 Cal., 1.52. 2. A statement that R. was committed for contempt in refusing to answer certain questions i)roi)ounded to him by tlic grand jury, is not a compliance with the section. The (picstions asked should be set out. — Ex parte Rowe, 7 Cal., Jan. T. 482. When a contempt is not committed in immediate view and presence of the court or judge, a warrant of attachment may be issued to bring the person charged to answer, or without a jjrevious arrest, a warrant of commitment may, upon notice, or upon an order to show cause, be granted ; and no warrant of commitment shall be issued without such previous attachment to answer, or such notice or order to show cause. §489 CONTEMPTS. 223 483. "Wlienever a warrant of attachment is issued pursuant to this chapter, the court or judge shall direct whether the person charged may be let to bail for his appearance, upon the warrant, or detained in custody without bail ; and if he may be bailed, the amount in which he may be let to bail. The directions given in this respect shall be specified in the warrant, or endorsed thereon. 484. Upon executing the warrant of attachment, the sheriff shall keep the person in custody, bring him before the court or judge, and detain him until an order be made in the premises, unless the person arrested entitle himself to be discharged, as provided in the next section. x 485. When a direction to let the person arrested to bail, is contained in the warrant of attachment, or endorsed thereon, he shall be discharged from the arrest, upon executing and delivering to the ofiicer, at any time before the return day of the warrant, a written undertaking, with two sufficient sureties, to the effect that the person arrested will appear on the return of the warrant and abide the order of the court or judge thereupon ; or they will pay as may be directed, the sum specified in the warrant- 486. The officer shall return the warrant of arrest and undertak- ing, if any, received by him from the person arrested, by the return day specified therein. 487. AVhen the person arrested has been brought up or appeared, the court or judge shall proceed to investigate the charge, and shall hear any answer which the person arrested may make to the same, and may examine witnesses for or against him, for which an adjournment may be had from time to time, if necessary. 488. Upon the answer and evidence taken, the court or judge shall determine whether the person proceeded agamst is guilty of the contempt charged, and if it be adjudged that he is guilty of the con- tempt, a fine may be imposed on him not exceeding five hundred dollars, or he may be imprisoned not exceeding five days, or both. 489. When the contempt consists in the omission to perform an s^^^s. 224 CONTEMPTS. §490 act which is yet in the power of the person to perform, he may be impris- oned until he have perfoinnecl it, and in that case the act shall be specified in the warrant of commitment. 1. If a party be imprisoned for contempt in not answering questions pertinent in an action, he will be discharged when that action has abated. — Ex parte Roice, 7 Cal., Jan. T. 490. Persons proceeded against according to the provisions of this chapter, shall also be liable to indictment for the same misconduct, if it be an indictable offense ; but the court before which a conviction is had on the indictment, in passing sentence, shall take into considera- tion the punishment before inflicted. 491. When the warrant of arrest has been returned served, if the person arrested do not appear on the return day, the court or judge may issue another warrant of arrest, or may order the undertaking to be prosecuted, or both. If the undertaking be prosecuted, the meas- ure of damages in the action shall be the extent of the loss or injury sustained by the aggrieved party, by reason of the misconduct for which the warrant was issued, and the costs of the proceeding. 492. Whenever by the provisions of this chapter, an oflBcer is re- quired to keep a person, arrested on a warrant of attachment, in custody, and to bring him before a court or judge, the inability, from illness or otherwise, of the person to attend shall be a sufficient excuse for not bringing him up ; and the officer shall not confine a pci-son an'cstcd upon the warrant in a prison, or otherwise restrain him of personal liberty, except so far as may be necessary to secure his personal at- tendance. 1. "Where an order of the district court, fining and imprisoning for contempt, does not specify on its face wherein the contempt consisted, it will bo revei-sed on certiorari. — Ex parte Field, 1 Cal., 187. 493. The judgment and orders of the court or judge, made in cases of contempt, shall be final and conclusive. The punislmient shall be by fine or imprisonment, but no fine shall exceed the sum of five hun- dred dollars, and no imprisonment shall exceed the period of five days, except as provided in section four hundred and eighty-nine. 1. This order is liable to be reviewed by a higher tribunal. — Ex parte Cohen, 5 Cal., 494. U06 COSTS. 225 TITLE XIV. OF COSTS. -fc 494. [1853, 1855.] The measure and mode of compensation of attorneys and counselors shall be left to the agreement, express or im- plied, of the parties. But there shall be allowed to the prevailing party in any action in the supreme court, district courts and county courts, his costs and necessary disbursements in the action or special proceeding in the nature of an action. 1. An attorney has no lien on a judgment for his fee. — Ex parte Kyle, 1 Cal., 331 ; Noxon v. Gregory, 5 How. Pr., 339 ; Benedict v. Harlow, ib., 347. 2. Counsel fees, when stipulated, are a mere incident' of the judgment, and should be annexed to the costs. — Carrihe v. Minturn, 5 Cal., 435 ; Gronjier v. Mintarn, ib., 492. 495. [1853.] Costs shall be allowed of course to the plaintiff upon a judgment in his favor, in the following cases : 1st. In an action for the recovery of real property ; 2d. In an action to recover the possession of personal property, when the value of the property amounts to two hundred dollars or over. Such value shall be determined by the jury, court or referee, by whom the action is tried ; 3d. In an action for the recovery of money or damages where plain- tiff recovers two hundred dollars^^or over ; 4th. In a special proceeding in the nature of an action. See Sec. 235. 1. Where a remittitur is sent down, the clerk of the district court may issue exe- cution for costs. — Mayor of Maryxville v. Buchanan, 3 Cal., 212. 2. The plaintiff is bound by his statement of the value of the property, if no other is found by the court, and costs will be taxed accordingly. — Edgar v. Gray, 5 Cal., 267. 3. "Where a plaintiff recovers less than two hundred dollars, but extinguishes a counter claim set up in the answer, which exceeds that amount, neither party is entitled to costs. — Kaltv. Lignot,3 Abbott, 33, 190. 496. When several actions are brought on one bond, undertaking, promissory note, bill of exchange, or other instrument in writing, or in 226 COSTS. §497 any other case for the same cause of action, against several parties "who might have been joined as defendants in the same action, no costs shall be allowed to the plaintiff in more than one of such actions, which may be at his election, if the party proceeded against in the other ac- tions were at the commencement of the previous action openly within this state ; but the disbursements of the plaintiff shall be allowed to him in each ^igp*ion [action.] 497. Costs shall be allowed, of course, to the defendant, upon a judgment in his favor in the actions mentioned in section four hun- dred and ninety-five, and in a special proceeding in the nature of an action. See note to Sec. 145. 1. Where several defendants defend successfully by different attorneys who are partners, but one bill of costs can be allowed ; but otherwise, if they are not partners. — CoUonib V. Caldwell, 5 How. Pr., 3.3 G ; Crofts v. llockefdler , 6 ib., 9. 2. Where several defendants are sued and judgment obtained by plaintiff against a part only, the others who obtain judgment against the plaintiff, are entitled to costs. — Uinds V. Mi/ers, 4 How. Pr., 356 ; Cui/ler v. Coats, 10 ib., 141 ; Daniels v. Lyon, 5 Scl- den, 549. 498. In other actions than those mentioned in section 495, costs may be allowed, or not ; and if allowed, may be apportioned between the parties, on the same or adverse sides, in the discretion of the court ; but no costs shall be allowed in an action for the recovery of money or damages Avhen the plaintiff recovers less than two hundred^ dollars, nor in an action to recover the possession of personal property, when the value of the property is less than two hundred dollars. 1. Costs are an incident of the judgment to be taxed by the clerk or court, and can- not be given l)y the jury as damages wliere less than two hundred dollars is recovered. — Shayv. Tuolumne ]Vater Co., G Cal., 289. 2. An action brought after an irregular levy and sale, to enjoin the parties from per- fecting the sale, and to recover damages for the injury already done, is one of those ac. tions in wliich costs are in the discretion of the court. — Sunney v. Roach, 4 Abbott, IG. 499. When there are several defendants in the actions mentioned in section four hundred and ninety-five, not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover judgment against all, the court shall award costs to such of the defendants as have judgment in their favor. 1. In an action for tort against two, where tliere is a verdict in favor of one defend- §507 COSTS. 227 ant, and in favor of the plaintiff against the other defendant, the defendant prevailing, is entitled, of course, to costs under this section. — Decker v. Gardiner, 4 Seld., 29. 2. Where there is but one set of papers, one argument and one judgment, there is but one appeal, and the successful party is entitled to but one bill of costs, notwithstand- ing that the several adverse parties appeared by ditlerent attorneys. — Everson v. Gehr- man, 2 Abbott, 413. 500. In the following cases the costs of an appeal shall be in the discretion of the court : '^•^ 1st. When a new trial is ordered ; 2d. When a judgment is modified. 1. Where a judgment was affirmed in part, and reversed in part, the respondent was allowed his costs in the court below, but was required to pay the costs of appeal. — Colev. Swanston, 1 Cal., 51. See Rule XXXI. 501, 502, 503. [1855.] Repealed. 501. The fees of referees shall be five dollars to each, for every day spent in the business of the reference ; but the parties may agree in writing upon any other rate of compensation, and thereupon such rate shall be allowed. , 505. [1855.] When an application is made to a court or referee to postpone a trial, the payment of costs occasioned by the postponement may be imposed, in the discretion of the court or referee, as a condi- tion of granting the same. 506. When, in an action for the recovery of money only, the de- fendant alleges in his answer, that before the commencement of the action he tendered to the plaintiff the full amount to which he was en- titled, and thereupon deposits in court, for the plaintiff, the amount so tendered, and the allegation be found to be true, the plaintiff shall not recover costs, but shall pay costs to the defendant. 1. The answer must aver a readiness still to pay the tender ; it is an essential part of the plea. — Korlrujiitx. Cadi/, 23 Barb., 490 ; 5 Abbott, 358. 2. Evidence of waiver of tender by opposite party, is competent and sufficient to support the averment of tender. — Holmes v. Holmes, 5 Sold., 525. 3. It is very doubtful if a tender can now be made after suit brought, unless in the form of sec. 390, an ojfer to take judgment. — Thurston v. Marsh, 14 How. Pr., 572. 507. In an action prosecuted or defended by an executor, adminis- trator, trustee of express trust, or a person expressly authorized by 228 COSTS. §508 statute, costs may be recovered as in action by and against a person prosecuting or defending in Lis own right ; but such costs shall, by the judgment, be made chargeable only upon the estate, fund, or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in the action or defense. ■< 508. When the decision of a court of inferior jurisdiction in a spe- cial proceeding is brought before a court of higher jurisdiction for a re- view in any other way than by appeal, the same costs shall be allowed as in cases on appeal, and may be collected by execution, or in such manner as the court may direct, according to the nature of the case. 509. On the commencement of an action, the plaintiff, and on the fil- ing of notice of appeal from a final judgment, the appellant, shall pay to the clerk three dollars, to^^o-applipd toJliiLpajaiignt of the salary of the j nrlgp ar j jj ^lj^^n nf tli p nn^ i rt inj aJi i nh tbo |>a.ymAnt. is mndp. Each clerk shall keep an account of money so received, and shall pay over the same, at the end of eadi month, to the iujfee or judges of the court, taking *> duplicate receipt of each payment,\me of which shall\be filed by the clerk in his own cburt. On the first day-es, I How. Pr., 240 ; Cort- land Mutual Insurance Co. v. Lathrop, 2 ib., 146 ; Knickerbocker v. Loucks, 3 ib., 64 ; Levi V. Jakeways, 4 ib., 126. 518. When a notice of motion is given, or an order to show cause is made returnable before a judge out of court, and at the time fixed for the motion, or on the return day of the order, the judge is unable to hear the parties, the matter may be transferred by his order to some other judge, before whom it might originally have been brought. J-p §r)22 MOTIONS AND NOTICES. 231 519. Written notices and other papers, ^vhen required to be served on the party or attorney, shall be served in the manner prescribed in the next three sections, when not otherwise provided ; but nothing in this title shall be applicable to original or final process, or any pro- ceedings to bring a party into contempt. 1. Service of a notice or other papers on a Sunday, is irregular and void. — Fidd v. Par):, 20 John., 140. 520. The service may be personal, by delivery to the party or attorney, on whom the service is required to be made, or it may be as follows : 1st. If upon an attorney, it may be made during his absence from his office, by leaving the notice or other papers with his clerk therein, or with a person having charge thereof ; or when there is no person in the office, by leaving them, between the hours of eight in the morning and six in the afternoon, in a conspicuous place in the office ; or if it JT P be not open, so as to admit of such service, then by leaving them at the attorney's residence, with some person of suitable age and discre- tion ; and if his residence be not known, then by putting the same en- closed in an envelope, into the post-office, directed to such attorney ; 2d. If upon a party, it may be made by leaving the notice or other paper at his residence, between the hours of eight in the morning and six in the evening, with some person of suitable age and discretion ; and if his residence be not known, by putting the same, enclosed in an envelope, into the post-office directed to such party. 521. Service by mail may be made, Avhere the person making the service, and the person on whom it is to be made, reside in different places, between which there is a regular communication by mail. 1. When the paper is tiius deposited in the proper post-office, correctly addres.sed and postage paid, the service is deemed complete, and the party to whom it is addressed takes the risk of the failure of the mail. — Lauier v. Saratoga Mutual Insurance Co., 2 CodeR.., 114; Jacobs v. Hooker, 1 Barb., 71 ; Schenck v. McKie, 4 How. Pr., 246. 522. In case of service by mail, the notice or other paper shall be deposited in the post-office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid. And in such case the time of service shall be increased one day for every twenty miles distance between the place of deposit and the place of the address. }f- J^- Jf 232 MOTIONS AND NOTICES. §523 1 . Giving notice by mail is depositing a letter containing tlie requisite information, properly addressed, into the post-office. — Vassar v. Camp, 14 Barb., 341. 523. A defendant shall be deemed to appear in an action when he answers^ demurs, or gives the plaintiffwritten notice of his appearance, or when an attorney gives notice of appearance for him. After ap- pearance, a defendant or his attorney shall be entitled to notice of all subsequent proceedings, of which notice is required to be given. But where a defendant has not appeared, service of notice or papers need not be made upon him, unless he be imprisoned for want of bail. 52-i. AVhen a plaintiff or a defendant who has appeared resides out of the state, and has no attorney in the action or proceeding, the service may be made on the clerk for him. But in all cases where a party has an attorney in the action or proceeding, the service of papei-s, when required, shall be upon the attorney instead of the party, except of subpoenas, of writs, and other process issued in the suit, and of papers to bring him into contempt. 1 . Wiicre a party changes his attorneys in an action, and there is no regular substi- tution of attorneys as pointed out by statute, notices may be served on the attorney of record. — Grant v. White, 6 Cal., 55. 2. It is irregular to serve papers in a cause upon the attorney, after he becomes a non-resident. — Diefendorfv. House, 9 How. Pr., 243. 525. Successive actions may be maintained upon the same contract or transaction, whenever, after the former action, a new cause of action arises therefrom. 526. Whenever two or more actions are pending at one time be- tween the same parties, and in the same court, upon causes of action which might have been joined, the court may order the actions to be consolidated into one. 1. This may lie on tlic motion of plaintift'or defendant. — Brigfjs v. Gaunt, 4 Duer, 664. 527. An action may be brought by one person against another, for the purpose of determining an adverse claim which the latter makes against the former, for money or property, upon an alleged obligation ; and also against two or more persons, for the purpose of compelling one to satisfy a debt due to the other, for which the plaintiff is bound as security. §532 COSTS. 233 1. The provisions of this section snstaincd. — King v. IlaU, 5 Cal., 82. 528. The clerk shall keep among the records of the court, a reg- ister of actions. He shall enter therein the title of the action, with brief notes under it, from time to time, of all papers filed, and pro- ceedings had therein. 529. "When there aj'e three referees, or three arbitrators, all shall meet, but two of them may do any act Avhich might be done by all. 530. The time within which an act is to be done, as provided in this act, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded. See notes to Sec. 30 for service of snmmous. 1. Easton v. Chamberlin, 3 How. Pr., 412 ; Daijton v. Mclntjjre, 3 Code E., 164 ; 5 How. Pr., 117 ; Tai/Ior v. Corbiere, 8 ib., 385. 2. A notice served on Saturday for Monday, is not a notice of two days. — Whipple V. Williams, 4 How. Pr., 28. 531. An affidavit, notice, or other paper, without the title of the action or proceeding in which it is made, or with a defective title, shall be as valid and effectual for any purpose, as if duly entitled, if it in- telligibly refer to such action or proceeding. See note to Sec. 517. 1. On a motion to vacate an order, where the affidavits intelligibly refer to the ac- tion, an objection that the affidavits arc entitled in the wrong court will be disregarded. Blake v. Loc)i, 1 Code R., N. S., 406. 532. When a cause of action has arisen in another state, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of a citizen thereof, who has held the cause of action from the time it accrued. 234 PROCEEDINGS IN JUSTICES' COURTS. §533 TITLE XVI. OP PROCEEDINGS IN CIVIL CASES IN JUSTICES' COURTS. CHAPTER I. OF THE PARTIES AND THE TIME AND PLACE OF COMMENCING ACTIONS IN justices' COURTS. y 0'^/ /) 533. The provisions of title ojie of this act, as to parties to actions, ■ shall be appHcable to actions of which a justice's court has jurisdiction. ^ 534. Parties injustices' courts maj prosecute or defend in person, !j) 5^3 ' or by attorney ; and any person, on the request of a party, may act as his attorney, except that the constable by whom the summons or jury process was served, shall not appear or act on the trial in behalf of either party. 535. [1853.] No person shall be held to answer to any summons issued against him from a justice's court, in a civil action, in any township or city other than the one in which he shall reside, except in the cases following : 1st. When there shall be no justice's com-t for the township or city in which the defendant may reside, or no justice competent to act on the case ; 2d. When two or more persons shall be jointly, or jointly and seve- rally bound in any debt or contract, or otherwise jointly liable in the same action, and reside in difterent townships or different cities of the same county, or in different counties, the plamtiff may prosecute his action in a justice's court of the township or city in which any of the debtors or other persons liable may reside ; 3d. In cases of injury to the person, or to real or personal property, the plaintiff may prosecute his action in the township or city where the injury was committed ; 4th. When personal property unjustly taken or detained is claimed, or damages therefor are claimed, the plaintiff may lu-ing his action in §538 PROCEEDINGS IN JUSTICES' COURTS. 235 any township or city in wliich the property may be found, or in which the property was taken ; 5th. When the defendant is a non-resident cf the county, he may be sued in any township or city Avherein he may be found ; 6th. When a person has contracted to perform any obhgation at a particular place, and resides in another township or city, he may be sued in the township or city in which such obligation is to be per- formed, or in which he resides ; 7th. AVhen the foreclosure of a mortgage or the enforcement of a lien upon personal property is sought l)y the action, the plaintiif may sue in the township or city where the property is situated ; 8th. Any person or persons residing in the city of San Francisco, may be held to answer to any summons issued against him or them from the court of a justice for any township within the corporate limits of the city of San Francisco, in any action or proceeding whereof jus- tices of the peace of the city or county of San Francisco have or may have jurisdiction by law ; provided, nothing herein shall be construed to allow any justice of said city or county to hold a court in any other township than the one for which he shall have been elected. 536. Judgment upon confession maybe entered up in any justice's court in the state, specified in the confession. 1. A confession for an amount exceeding the jurisdiction, is a nullity. — Grisimld v. Sheldon, 1 Code E., N. S., 261 ; Daniels v. Hinkston, 5 How. Pr., 322 ; Fillrrt v. En- gler, 7 Cal., July T. 2. A confession of judgment before a justice who is father-in-law to the plaintiff, is illegal on the ground of relationship. — Chapin v. Churchill, 12 How. Pr., 367. 537. Justices' courts shall have jurisdiction of an action upon the voluntary appearance of the parties without summons, without regard to their residences, or the place where the cause of action ai'ose, or the subject matter of the action may exist. CHAPTER II. SUiMMONS, ARREST, ATTACHMENT AND CLAIM OF PERSONAL PROPERTY. 538. Actions in justices' courts shall be commenced by filing a 236 SUMMONS IN justices' courts. §539 copy of the account, note, bill, bond, or instrument upon ■Rliicli the action is brought, or a concise statement in -svriting of the cause of ac- tion, and the issuance of a summons thereon, or by the voluntary ap- pearance and pleadings of the parties without summons. In the latter case the action shall be deemed commenced at the time of appearance. 539. When a guardian is necessary, he shall be appointed by the justice, as follows : 1st. If the infant be plaintiff, the appointment shall be made be- fore the summons is issued, upon the application of the infant, if he be of the age of fourteen years or upwards ; if under that age, upon the application of some relative or friend. The consent in writing of the guardian to be appointed, and to be responsible for costs, if he fail in the action, shall be first filed with the justice. 2d. If the infant be defendant, the guardian shall be appointed at the time the summons is returned, or before the pleadings. It shall be the right of the infant to nominate his own guardian, if the infant be over fourteen years of age, and the proposed giiardian be present and consent in writing to be appointed. Otherwise, the justice may appoint any suitable person who gives such consent. 540. The summons shall be addressed to the defendant by name, or if his name be unknown, by a fictitious name ; and shall summon him to appear before the justice at his office, naming its township or city, and at a time specified therein, to answer the complaint of the plaintiff, for a cause of action therein described, in general terms, suf- ficient to apprise the defendant of the nature of the claim against him ; and in an action for money or damages, shall state the amount for which the plaintiff will take judgment, if the defendant fail to appear and answer. It shall be subscribed by the justice before whom it is returnable. 541. [1854.] The time mentioned in the summons for the appear- ance of the defendant and the time of service shall be as follows: 1st. When the summons is accompanied Avith an order to arrest the defendant, it shall be returnable immediately ; 2d. AVhen the defendant is not a resident of the townshi]) or city, or when the plaintiff is not a resident, it shall be returnable not more than two days from its date, and shall be served at least one day before the time for appearance. §543 SUMMONS IN justices' courts. 237 Sd. In all other cases, it shall be returnahle hi not less than two, nor more than ten days from its date, and shall be served at least two days before the time for appearance. 1. 3d. A summons issued on February 3d and returnable on tlic 14tli, is ifregular, being more than ten days. — DeidesJieimer v. Brown, 7 Cal., Oct. T. 542. The summons shall be served by the sheriif or a constable of the county, as follows : 1st. If the action be against a corporation, by a delivery of a copy to the president or other head of the corporation, or to the secretary, cashier or managing agent thereof ; or when no such officer resides in the county, to a director resident therein ; 2d. If against a minor under the age of fourteen years, by delivery of a copy to such minor, and also to his father, mother, or guardian ; or if there be none within the county, then to any person having the care or control of such minor, or with Avhom he resides, or in whose service he is ; 3d. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, and for whom a guardian has been appointed, by delivery of a copy to such guardian ; 4th. In all other cases, by delivery of a copy to the defendant personally. 1. The constable may appoint deputies. — Tai/Ior v. Brown, 4 Cal., 188. 2. To give a justice jurisdiction and to authorize him to render judgment against an absent defendant, there must be a return showing personal service of process. — Manning v. Johnson, 7 Barb., 457. 3. The return of a constable certifying the time and manner of his serving a sum- mons upon the defendant, is presumptive evidence of what it states. — Wheeler v. New York ^' Harlem R. R. Co., 24 Barb., 414. 543. [1854.] When the person upon whom the service is to be made resides out of the state, or has departed from the state, or can- not, after due diligence, be found within the state, or conceals himself to avoid the service of summons, and the fact shall appear, by affida- vit, to the satisfaction of the justice, and it shall, in like manner, ap- pear that a cause of action exists against the defendant in respect to whom the service is to be riiade, the justice shall grant an order that the service be made by the publication of the summons. The order shall direct the publication to be made in a newspaper, to be designat- ed as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least one week : 238 ARREST IX justices' COURTS. §544 provided, that a publication against a defendant residing out of the state or absent therefrom, shall not be less than three months. The service of summons shall be deemed complete at the expiration of the time prescribed by the order of publication ; the justice shall also di- rect a copy of the summons to be forthwith deposited in the post office, directed to the person to be served, at hi^ place of residence. 5-44. An order to arrest the defendant may be endorsed on a sum- mons issued by the justice, and the defendant may be arrested thereon by the sheriff or constable, at the time of serving the suuj^ons, and brought before the justice, and there detained until duly discharged in the following cases, arising after the passage of this act : 1st. In an action for the recovery of money or damages, on a cause of action arising upon contract, express or imphed, when the defend- ant is about to depart from the state, with intent to defraud his cred- itors ; or where the action is for a willful injury to the person, or for taking, detaining or injuring personal property ; 2d. In an action for a fine or penalty, or for money or property em- bezzled, or fraudulently misapplied, or converted to his own use by an attorney, factor, broker, agent or clerk, in the course of his employ- ment as such, or by any other person in a fiduciary capacity ; 3d. When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought ; 4th. When the defendant has removed, concealed, or disposed of his property, or is about to do so, with intent to defraud his creditors. But no female shall be arrested in any action. 1. The provisions of arrest for willful injury to person or character, arc in conflict with the constitution. — Ex parte Pradcr, 6 Cal., 239. 2. If the warrant is not valid on its face, the justice who issues and the ofticcrs who execute it, are liable to the jiarty arrested. — Willitims v. Garrett, 12 How. Pr., 456. 54."). Before an order for an arrest shall be made, the party applying sl^jill prove to the satisfaction of the justice, by the affidavit of himself or some other person, the facts on which the application is founded. The plaintiff shall also execute and dehver to the justice a written un- dertaking, with two or more sureties, to the effect that if the defendant recover judgment, the i)laiiitiff will pay to him all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding tlic sura specified in the undertak- ing, which shall be at least two hundred dollars. §550 ARREST IX justices' COURTS. 239 546. The defendant, immediately upon being arrested, shall be taken to the office of the justice who made the order, and if he be ab- sent or unable to try the action, or if it be made to appear to him by the affidavit of the defendant, that he is a material witness in the ac- tion, the officer shall immediately take the defendant before the next justice of the city or township, who shall take cognizance of the action, and proceed thereon, as if the summons had been issued and the order of arrest made by him. Sec Sec. 582. 547. The officer making an arrest shall immediately give notice thereof to the plaintiff, or his attorney or agent, and endorse on the summons, and subscribe a certificate, stating the time of serving the same, the time of the arrest, and of his giving notice to the plaintiff. 548. The officer making the arrest shall keep the defendant in custody until duly discharged by order of the justice. 549. The defendant under arrest, on his appearance with the officer, may demand a trial immediately ; and upon such demand be- ing made, the trial shall not be delayed beyond three hours, except by the trial of another action pending at the time ; or he may have an ad- journment, and be discharged on giving bail, as provided in the next section. An adjournment at the request of the plaintiff, beyond three hours, shall discharge the defendant from arrest, but the action may proceed, notwithstanding ; and the defendant shall be subject to arrest on the execution in the same manner as if he had not been so discharged. See Sec. 582. 550. If the defendant on his appearance demand an adjournment, the same shall be granted on condition that he execute and file with the justice an undertaking, with two or more sufficient sureties, to be approved by the justice, to the effect that he will render himself amenable to the process of the court during the pendency of the ac- tion, and such as may be issued to enforce the judgment therein ; or that the sureties will pay to the plaintiff the amount of any judgment which he may recover in the action. On filing the undertaking speci- 5,r^'- $ 240 ATTACHMENT IN JUSTICES' COURTS. §551 fied in this section, the justice shall order the defendant to be dis- charged from custody. / ^/j ^^1* [1858.] In an action upon a conti-act, express or implied, '^ made after the passage of this act, for the direct payment of money, which contract is made or payable in this state, and is not secured by mortgage upon real or personal property, the plaintiff, at the time of issuing the summons, or at any tim^ afterwards, may have the pro}> erty of the defendant attached*«(ssecurity for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgmefft, in all cases specified in section one hundred and twenty of this act (a). 552. [1858.] A writ to attach the property of the defendant shall be issued by the justice, on receiving an affidavit by or on behalf of the plaintiff, showing the same facts as are required to he shotvn by the affidavit specified in section one hundred and tiventy-one of this act (a) . 1. This section was not amended so as to authorize an attachment upon a contract madepriortothepassagcof this act, or against non-residents, as in Sec. 120, prior to 1858. / C^/ A 553. [1858.] Before issuing the writ, the justice shall re(|uire a -^^-^ written undertaking on tjie part of the plaintiff, with two or more suffi- cient sureties, to the effect that, if the defendant recover judgment, or if the attachment he dismissed, the plaintiff will pay all costs that may be awarded to the defendant, and all damages Avhich he may sustain by reason of the attachment (a). •^'j'i 1. Proceedings on an attaciimcnt bond are void, if the justice takes the bond in an amount exceeding his jurisdiction. — Binedict v. Bray, 2 Cal., 251. 554. The writ may be directed to the sheriff or any constable of the county, and shall require him to attach and safely keep all the property of the defendant in his county, not exempt from execution, or so much thereof as maybe sufficient to satisfy the plaintiff's demand, the amount of which shall be stated in conformity with the complaint, unless the defendant give him security by the undertaking of two suf- ficient sureties, in an amount sufficient to satisfy such demand besides costs ; in which case, to take such undertaking. (u) This amendment goes into eflect after July 1st, 1858. I §5.59 ATTACHMENT IN JUSTICES' COURTS. 241 555. The sc(3i^ns of this act, from section one hundred and twenty- four, to section one hundred and forty-one, both inchisive, shall be ap- plicable to attachments issued injustices' courts, the word " constable" being substituted for the -word " sheriff," whenever the writ is directed to a constable, and the -vTbrd "justice" being substituted for the word "judge." 556. The plaintiff in an action to recover the possession of personal property, may, at the time of issuing the summons, or at any time before answer, claim the delivery of such property to him, as provided in this chapter. 557. When a delivery is claimed, an affidavit shall be made by the plaintiff, or by some one in his behalf, showing : 1st. That the plaintiff is the owner of the property claimed, (par- ticularly describing it,) or is lawfully entitled to the possession thereof; 2d. That the property is wrongfully detained by the defendant ; 8d. The alleged cause of the detention thereof, according to his best information and belief; the same has not been taken for a tax, assessment, or fiTie, purs'uant to statute, or seized under an execution or an attach- mentligainst the property of the plaintiff, or^if seized, that it is by statute exempt from such seizure ; and, 5th. The actual value of the property. 558. The justice shall thereupon, by an endorsement in writing upon the affidavit, order the sheriff or a constable of the county, to take the same from the defendant, and deliver it to the plaintiff, upon re- ceiving the undertaking mentioned in the following section. 1. This section has not been amended so as to give tlie party or his attorney, the authority to require the takingof the property as in Sec. 101. 559. Upon the receipt of the affidavit, and order, with a written undertaking, executed by two or more sufficient sureties, approved by the officer, to the effect that they are bound in double the value of the property as stated in the affidavit for the prosecution of the action, for the return of the property to the defendant if return thereof be ad- judged, and for the payment to him of such sum, as may, for any cause, be recovered against the plaintiff, the officer shall fortLwith take 6a. Tiie ai 'knoAn'fe^^, in 242 REPLEVIN IN justices' COURTS. §5G0 the property described in the affidavit, if it be in ppssession of the de- fendant, or his agent, and retain it in his custody. He sliall also, without delay, serve on the defendant a copy of the affidavit, order and undertaking, by delivering the same to him personally if he can be found witliin the county, or to his agent from whose possession the property is taken, or if neither can be found within the county, by leaving them at the usual place of abode of either within the county, with some person of suitable age and discretion, or if neither have any known place of abode within the county, by putting them into the nearest post-office directed to the defendant. 560. The defendant may, within two days after the service of a copy of the affidavit and undertaking, give notice to the officer that he excepts to the sufficiency of the sureties ; if he fails to do so, he shall be deemed to have Avaived all objection to them. When the defendant excepts, the sureties shall justify on notice before the justice ; and the officer shall be responsible for the sufficiency of the sureties until the objection to them is either waived as above provided, or until they justify. If the defendant except to the sureties, he cannot reclaim the property as provided in the next section. 561. At any time before the delivery of the property to the plain- tiff, the defendant may, if he do not except to the sureties of the plaintiff, re(iuire the return thereof, upon giving to the officer a written undertaking executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may for any cause be recovered against the defendant. If a return of the property be not so reijuircd within two days after the taking and service of notice to the defendant, it shall be delivered to the plaintiff, except as provided in this chapter. 562. The defendant's sureties, upon reasonable notice to the plain- tiff, shall justify before the justice ; and upon such justification, the officer shall deliver the pro})erty to the defendant. The officer shall be responsible for the defendant's sureties until they justify, or until the justification is completed or expressly waived, and may retain the property until that time ; but if they, or others in their place, fail to §507 KEPLEVIN IN justices' COURTS. 243 justify at the time appointed, he shall deliver the property to the plamtiff. 563. If the property or any part thereof, be concealed in a l)uild- ing or enclosure, the officer shall publicly demand its delivery, and if it 1)0 not delivered, he shall cause the building or enclosure to be brok- en open, and take the property into his possession. 564. When the officer shall have taken property, as in this chapter provided, he shall keep it in a secure place, and dehver it to the party entitled thereto, upon receiving his lawful fees for taking, and his nec- essary expenses for keeping the same. 565. If the property taken be claimed by any other person than the defendant or his agent, and such person make affidavit of his title thereto, or right to the possession thereof, stating the grounds of such title or right, and serve the same upon the officer, the officer shall not be bound to keep the property, or deliver it to the plaintiff, unless the plaintiff, on demand of him or his agent, indemnify the officer against such claim, l)y an undertaking executed by two sufficient sureties, ac- companied by their affidavits that they are each worth double the value of the property as specified in the affidavit of the plaintiff, over and above their debts and liabilities, exclusive of property exempt from execution, and are freeholders or householders of the county ; and no claim to such property by any other person than the defendant or his agent shall be valid against the officer, unless so made. 56Q. The officer shall return the order and affidavit, with his pro- ceedings thereon, to the justice, within five days after taking the property mentioned therein. 567. The qualification of sureties on the several undertakings re- quired by this chapter, shall be as follows : 1st. Each of them shall be a resident and householder, or free- holder, within the county ; 2d. Each shall be worth double the amount stated in the undertak- ing over and above all his debts and liabilities, exclusive of property exempt from execution. 244 PLEADINGS AND TRIAL. §568 568. For the purpose of justification, each of the sureties shall at- tend before the justice at the time mentioned in the notice, and may be examined on oath, on the part of the adverse party, toucliing his sufficiency, in such manner as the justice, in his discretion, may think proper. The examination shall be reduced to writing and subscribed by the sureties, if required. 569. If the justice find the sureties sufficient, he shall annex the examination to the undertaking, endorse his allowance thereon, and file the same, and the officer shall thereupon be exonerated from liabihty. CHAPTER III. PLEADINGS AND TRIAL. 570. The pleadings in justices' courts shall be : 1st. The complaint by the plaintiff stating the cause of action ; 2d. The answer by the defendant, stating the ground of the defense. 571. The pleading shall be in writmg, and verified by the oath of the party, his agent or attorney, when the action is : 1st. For the foreclosure of any mortgage or the enforcement of any lien on personal property ; 2d. For a forcible. or unlawful entry upon, or a forcible or unlawful detention of lands, tenements, or other possessions ; 3. To recover possession of a " minmg claim." In other cases the pleading may be oral or in writing. 1. 2d. Tlie rule tliat a penal statute must be declared upon by the i)arty seeking re- covery under it, docs not apply to pleadings in a justice's court. — 0' Callar/han v. Booth, f) Cal., 63 ; Hart v. Moon, \h.. IGl. 2. This jurisdiction is not uncoiistitutionaL — lb. 572. When the pleadings are oral, the substance of them sl»all be entered by the justice in his docket ; when in writing, they shall be filed in his office, and a reference made to them in the docket. Plead- ings shall not be required to be in any particular form, but shall be such as to enable a person of common understandmg to know what is intended. §577 PLEADINGS AND TKIAL. 245 1 . It is not tlie i>olicy of the law to confine parties to any nice strictness in pleadinfr. Cronisev. Canjldll, 4 Cal., 120. e 573. The complaint ^hall state in a plain and direct manner, the facts constitutmg the cause of action. 574. The answer may contain a denial of any of the material facts stated in the complaint, which the defendant believes to be untrue, and also a statement, in a plain and direct manner, of any other facts con- stituting a defense, or a counter claim upon which an action may be brought by the defendant against the plaintifi' in a justice's court. 1. The objection to the jurisdiction on tlie ground of excess of vahie of the subject in controversy, is properly taken by answer, and should be determined before proceed- ing to hear the merits of the action. — Small v. Gwinn, 6 Cal., 447. 575. A statement in an answer that the party has not sufficient knowledge or information, in respect to a particular allegation in the previous pleading of the adverse party to form a belief, shall be deemed equivalent to a denial. 576. When the cause of action or counter clailli arises upon an ac- count or instrument for the payment of money only, it shall be suffi- cient for the party to deliver a copy of the account or instrument to the court, and to state that there is due to him thereupon, from the adverse party, a specified sum, which he claims to recover or set-off. The court may, at the time of the pleading, require that the original account or instrument be exhibited to the inspection of the adverse party, and a copy to be furnished ; or if it be not so exhibited and a copy furnished, may prohibit its being afterwards given in evidence. 1. Where, in an action- on contract, the plaintiff recovers less then fifty [S200] dol- lars, but extinguishes a counter claim set up in the answer which exceeds that amount, neither party is entitled to costs. — Kalt v. Litjnot, 3 Abbott, 33, 190. 577. [1854.] If the plaintiff annex to his complaint, or file with the justice at the time of issuing the summons, a copy of the promis- sory note, bill of exchange, or other written obligation for the payment of money, upon which the action is brought, the defendant shall be deemed to admit the genuineness of the signatures of the makers, en- dorsers, or assignors thereof, unless he specifically deny the same in his answer, and verify the answer by his oath. 246 PLEADINGS AND TRIAL. §578 578. Either party may object to a pleading of his adversary, or to any part thereof, that it is not sufficiently explicit to enable him to un- darstand it, or that it contains no cause of action or defense, although it be taken as true. If the court deem the objection well founded, it shall order the pleading to be amended, and if the party refuse to amend, the defective pleading shall be disregarded. 1. On demurrer to a complaint in an action in a justice's court, if the olyection is acenied well taken, the judge should order the pleading to be amended, and if it is not amended, should disregard it. — Glasse v. Keiilsen, 3 Ahbe^tt, 100. 579. A variance between the proof on the trial and the allegations in a pleading, shall be disregarded as immaterial, unless the court be satisfied that the adverse party has been misled to his prejudice thereby. 580. "The pleadings may be amended at any time before the trial, to supply a deficiency or omission, when by such amendment substan- tial justice will be promoted. If the amendment be made after the issue, and it be made to appear to the satisfaction of the court, by oath, thati an aj^ouAment is necessary to the adverse party in conse- (juence of such amendment, an adjournment shall be granted. The court may also, in its discretion, require as a condition of an amend- ment, the payment of costs to the adverse party, to be fixed by the court, not exceeding twenty dollars ; but such payment shall not be required unless an adjournment is made necessary by the amendment ; nor shall an amendment be allowed after a witness is sworn on the trial, Avhen an adjournment thereby will be made necessary. 1. In an action in a justice's court after the defendant had commenced his proofs, the cause was adjourued by consent. On the adjourned day the plaintitt' failed to ap- pear ; the justice however proceeded with the cause, and rendered judgment for the de- fendant upon his counter claim, held that the justice erred in proceeding wjth the action. The only judgment proper in such cases is judgment of nonsuit or dismissal. — Noiris V. Bleaklcy, 3 Abbott, 107. 2. AVhcrc in a justice's court, after the justice had called his cases, a defendant who was in waiting asked iiis cause to be called, and was informed that there was no such cause, whercu]>on he left the court, held tiiat the justice could not afterwards proceed with the cause in defendant's absence. — Murliiif/ v. Grute, ib., 109. 3. Where a justice adjourned a cause with provision that if defendant filed security meantime, he should then have a further adjournment, and defendant filed the security but failed to appear on the adjourned day, held that the justice was right in proceeding to judgment. — Muhcrw Held, ib., 110. §582 PLEADINGS AND TRIAL. 247 4. Wlicrc an action is oomnienccd before a justice, and tlie answer of defendant in- terposes a plea of title, and an action for the same cause is commenced in an upper court, the cause must he governed hy the rules of pleading and practice by which otiier actions are conducted in this court. — Jeicctt v. Jewett, 6 How. Pr., 185. 581. The parties shall not be at liberty to give evidence by which the question of title to real property shall be raised on the trial before a justice; and if it appear from the plaintiff's own showing on the trial, or from the answer of the defendant, verified by his oath, or that of his agent or attorney, that the determination of the action will necessarily involve the decision of a question of title to real property, the justice shall suspend all further proceedings in the action, and cer- tify the pleadings ; or, if the pleadings be oral, a transcript of the same from his docket to the district court of the county ; and from the time of filing such pleadings or transcript with the county clerk, the district court shall have over the action the same jurisdiction as if it were originally commenced therein. Provided, that when the pleadings or transcript are certified to the district court upon the answer of the defendant, he shall file an undertaking with two or more sufficient sure- ties, to be approved by the justice, to the effect that they will pay all costs of the action, if it be decided against him by the district court. 1. Justices of the peace have no jurisdiction to try a cause where there is an alleged ') injury arising out of a diversion of water from the natural or artificial channel in which it is conducted. — Hilly. Newman, 5 Cal., 445. 2. Justices have no jurisdiction in actions to recover damages for injury to a mining // m claim, or for its detention. — Van Etten v. Jilson, 6 Cal., 19. ^^/f 3. Occupancy of a reservation by Indians is a title upon which a justice of the peace cannot pass in an action. — Smith v. Mitten, 13 How. Pr., 325. %o A^o'' 582. [1853.] If at any time before the trial it appear, to the sat- isfaction of the justice before whom the action is brought, by affidavit of either party, that such justice is a material witness for either party, or if either party make(affidavit that he has reason to believe, and does believe, that he cannot have a fair and impartial trial before such jus- tice, by reason of the interest, prejudice, or bias of the justice, the action shall be transferred to some other justice of the same or neigli- boring township ; and in case a jury be demanded, and affidavit of either party is made, that he cannot have a fair and impartial trial, on account of the bias or prejudice of the citizens of the township against him, the action shall be transferred to some other justice of the peace 248 PLEADINGS AND TRIAL. §583 in tlie countj. The justice to Avhom an action may be transferred by the provisions of this section, shall have and exercise the same juris- diction over the action as if it had been originally commenced l)efore him. The justice ordering the transfer of the action to another jus- tice, shall immediately transmit to the latter, on payment of costs, all the papers in the action, together with a certified transcript from his docket, of the proceedings therein. / h> / ^■ Upon the return day of the summons, if a jury be required, or if the justice be actually engaged in other official business, he may adjourn the trial without the consent of either party, as follows : 1st. "When a party who is not a resident of the county is in attend- ance, the adjournment not to exceed twenty-four hours ; when the de- fendant in attendance is under arrest, the adjournment not to exceed three hours ; 2d. In other cases not to exceed five days. See See. 546. 1. "When tlie justice is interested in the event of the suit, the statute requires he shouUl transfer it to another Justice. — Lame v. Gaslcbis, 5 Cal., 507- 2. AVhere the phiintiff discovers that the justice and defendant are related, and on that ground withdraws the suit, the justice cannot render judgment for his costs. — Ran- dall V. Halt, Lalor's sup])., 2.39. ^JUl, X^U-Cytt^-^^ A ^ ■ % I 583. [1854.] The trial may be adjourned by consent, or upon ap- plication of either party, Avithout the consent of the other, for a period not exceeding ten days, (except as provided in the next section,) as follows : 1st. The party asking the adjournment shall, if required by his ad- versary, prove by his own oath, or otherwise, that he cannot, for want of material testimony, which he expects to procure, safely proceed to trial, and shall show in what respect the testimony expected is mate- rial, and tha^t he has used due dihgence to procure it, and has been unable to do so ; 2d. The party asking the adjournment shall also, if required by the adverse party, consent that the testimony of any witness of such ad- verse party, who is in attendance, be then taken by deposition before the justice, which shall accordingly be done, and the testimony so taken may be read on the trial, with the same effect, and subject to the same objections as if the witpess were produced. But such objections shall de at the time of taking the deposition ; §587 PLEADINGS AND TRIAL. 249 3d. The court may also require the moving party to state upon affi- davit the evidence which he expects to obtain, and if the adverse party thereupon admit that such evidence would be given, and that it be con- sidered as actually given on the trial, or oflFered and overruled as im- proper, the trial shall not be postponed. 584. [1854.] An adjournment may be had, either r.t the time of joining issue, or at any subsequent time, to which the case may stand adjourned, on application of either party, for a period longer than ten days, but not to exceed four months, from the time of the return of summons, upon proof by the oath of the party, or otherwise, to the satisfaction of the justice, that such party cannot be ready for trial be- fore the time to which he desires an adjournment, for want of material evidence, particularly describing it, and that the delay has not been made necessary by any act of negligence on his part since the action was commenced ; that he has used due diligence to procure the evi- dence, and has been unable to do so, and that he expects to procure the evidence at the time stated by him : provided^ that if the adverse party admit that such evidence would be given, and consent that it may be considered as given on the trial, or offered and overruled as improper, the adjournment shall not be had. 585. No adjournment shall be granted for a period longer than ten days, upon the application of either party, except upon condition that such party file an undertaking, with sureties, to be approved by the justice, to the effect that they will pay to the opposite the amount of any judgment which may be recovered against the party applying. 586. If the plaintiff fail to appear at the return day of the sum- mons, the action shall be dismissed. If the defendant fail to appear at the return day of the summons, or if either party fail to attend at a day to which the trial has been adjourned, or fail to make the neces- sary pleading or proof on his part, the case may, nevertheless, proceed at the request of the adverse party, and judgment shall be given in conformity with the pleadings and proofs. 587. A. trial by jury shall be demanded at the time of joining issue, and shall be deemed waived if neither party then demand it. When demanded, the trial of the case shall be adjourned until a time Q 250 JUDGMENT AND EXECUTION. §588 and place fixed for the return of the jury. If neither party desire an adjournment, the time and place shall be determined by the justice, and shall be on the same day, or -svithin the next two days. The jury shall be summoned upon an order of the justice, from the citizens of the city or township, and not from the bystanders. 1. Where a party demands a jury trial in a iytice's court, and neglects to appear on the adjourned day, the justice may proceed amPnear the cause without a jury. — A'j7- patrickv. Curr, 3 Abbott, 117. 4 588. At the time appointed for the trial, the justice shall proceed to call, from the jurors summoned, the names of the persons to consti- tute the jury for the trial of the issue. The jury, by consent of the parties, may consist of any number not more than twelve nor less than three. 589. If a sufficient number of competent and indifferent jurors do not attend, the justice shall direct others to be summoned from the vi- cinity, and not from the bystanders, sufficient to complete the jury. 590. Either party may challenge the jurors. The challenges shall be either peremptory, or for cause. Each party shall be entitled to three peremptory challenges. Either party may challenge for cause, on any grounds set forth in section one hundred and sixty-two. Chal- lenges for cause shall be tried by the justice in a summary mamicr, who may examine the juror challenged, and witnesses. CHAPTER IV. JUDGMENT AND EXECUTION. 591. Judgment that the action be dismissed without prejudice to a new action, may be entered with costs in the following cases : 1st. When the plaintiff voluntarily dismisses the action before it is finally submitted ; 2d. When he fails to appear at the time specified in the summons, or upon adjournment, or within one hour thereafter ; 3d. When it is objected at the trial, and appears by the evidence, that the action is brought in the wrong county, or township, or city ; but if the objection be taken and overruled, it shall be cause only of I §595 JUDGMENT. 251 reversal on appeal, and shall not otherwise mvalidate the judgment ; if not taken at the trial, it shall be deemed waived, and shall not be cause of reversal. 592. When the defendant fails to appear and answer, judgment shall be given for the plaintiffi^as follows: 1st. When a copy of the amount, note, bill, or other obligatiourupon which the action is brought, was fil^d with the justice at the time the summons was issued, judgment shall be given without further evidence, for the sum specified in the summons ; 2d. In other cases the justice shall hear the evidence of the plain- tiff, and render judgment for such sum only as shall appear by the evi- dence to be just ; but in no case exceeding the amount specified in the summons. 1. Where a justice, by statements which are untrue, that defendant is not intending to appear, is induced to take up a cause at an unusual time, e. g., while engaged in the trial of another cause, a judgment rendered by him in favor of the plaintiff" will be re- versed. — Beach v. McCann, 4 Abbott, 18. 593. Upon issue joined, if a jury trial be not demanded, the jus- tice shall hear the evidence, and decide all questions of fact and of law, and render judgment accordingly. 594. [1854.] Upon a verdict, the justice shall immediately ren- der judgment accordingly. When the trial is by the justice, judg- ment shall be entered immediately after the close of the trial, if the defendant has been arrested and is still in custody ; in other cases it shall be entered within four days after the close of the trial ; if the action be on contract against two or more defendants, and the sum- mons is served on one or more, but not on all, the judgment shall be entered up only against those who were served, if the contract be a several or a joint and several contract ; but if the contract be a joint contract only, the judgment shall lie entered up against all the defend- ants, but shall only be enforced against the joint property of all, and the separate property of the defendants served. 595. When the amount found due to either party exceeds the sum for which the justice is authorized to enter judgment, such party may remit the excess, and judgment may be rendered for the residue. 252 EXEcuTiox. §59G 596. If the defendant, at any time before the trial, offer in writing to allow judgment to be taken against him for a specified sum, the plaintiff may immediately have judgment therefor, with the costs then accrued ; but if he do not accept such offer before the trial, and fail to recover in the action a sum equal to the offer, he shall not recover • costs, but costs sliall be adjudged against him, and if he recover, de- ducted from his recovery. But the offer and failure to accept it shall not be given in evidence to affect the recovery otherwise than as to costs, as above provided. 1 . If the tender is made after a suit is brought, it must be accompanied with the costs then accrued. — Peujile v. Banker, 8 How. Pr., 258. 597. When a judgment is rendered in a case where the defendant is sulyect to arrest and imprisonment thereon, it shall be so stated in the judgment and entered in the docket. 598. When the prevailing party is entitled to costs by this chap- ter, the justice shall add their amount to the verdict ; or in case of a failure of the plaintiff to recover, or in case of a dismissal of the action, shall enter up judgment in favor of the defendant for the amount of such costs. 599. [1854.] The justice, on demand of the party in whose favor judgment is rendered, shall give him a transcript thereof, which may be filed and docketed in the office of the clerk of the county where the judgment was rendered. The time of the receipt of the transcript by the county clerk, shall be noted by him thereon, and entered in the docket ; and from that time executions may be issued by the county clerk on such judgments to the sheriff of any other county of the state, in the same manner as upon judgments recovered in the higher courts. All process upon judgments recovered in justices' courts, to be execut- V A" ^^ within the same county, shall be issued by the justice or his suc- cessors in office. No judgment rendered by a justice of the peace shall create any lien upon any lands of the defendant, unless a tran- script of such judgment, certified by the justice, shall be filed and re- corded in the office of the recorder. AVhen such transcript is to be filed in any other county than that in which the justice resides, such transcript shall be accompanied with the certificate of the county clerk as to the official character of the justice. When so filed and recorded "^J-lv §602 EXECUTION. 253 in the office of the recorder for anj county, such judgment shall con- stitute a lien upon, and bind the lands and tenements of the judgment debtor, situated in the county where such transcript may be filed and recorded in favor of such judgment creditor, as if such judgment had been rendered in the district court of such county. 600. Execution for the enforcement of a judgment in a justice's court may be issued, on the application of the party entitled thereto, at any time within five years from the entry of judgment. 1. Unless an execution issue within five years, the judgment is void ; nor will the loss of the justice's docket prevent the time from running. — White v. Clarl-,1 CaX., Oct. T. 601. The execution, when issued by a justice, shall be directed to the sheriff or to a constable of the county, and subscribed by the jus- tice by whom the judgment was rendered, or by his successor in office, and shall bear date the day of its delivery to the officer to be executed. It shall intelligibly refer to the judgment by stating the names of the parties, and the name of the justice before whom, and of the county, and the township or city where, and at the time when, it was render- ed ; the amount of judgment, if it be for money; and if less than the whole is due, the true amount due thereon. It shall contain, in like cases, similar directions to the sheriff or constable as are required by the provisions of Title VII, of this act, in an execution to the sheriff. 602. [1854.] The sheriff or constable to whom the execution is directed, shall proceed to execute the same in the same manner as the sheriff is required by the provisions of Title VII, of this act, to pro- ceed upon executions directed to him ; and the constable, when the execution is directed to him, shall be vested for that purpose with all the powers of the sheriff ; and after issuing an execution, and either before or after its return, (if the same be returned unsatisfied either (^fl/t in whole or in part,) the judgment creditor shall be entitled to an or- «r- i^ der from the justice, requiring the judgment debtor to attend at a time to be designated in the order, and answer concerning his property be- fore such justice, and the attendance of such debtor may be enforced by the justice. On his attendance, such debtor may be examined under oath concerning his property ; and any person alleged to have in his hands property, moneys, effects or credits of the judgment debtor. 254 GENERAL PROYISIOXS. §603 may also be required to attend and be examined, and the justice may order any property in the hands of the judgment debtor, or any other person, not exempt from execution, belonging to such debtor, to be applied towards the satisfaction of the judgment, and the justice may enforce such order by imprisonment until complied with ; but no judg- ment debtor or other person shall bo required to attend before the jus- tice out of the county in which he resides. CHxVPTER V. GENERAL PROVISIONS. 603. [1858, 1854.] Those provisions of this act, which are refer- red to in this title, and no other, shall, in addition to the provisions em- braced in this title, be appHcable to justices' com-ts and proceedings therein. 604. [1855.] Every justice shall keep a book denominated a " docket," in which he shall enter : 1st. The title of every action or proceeding ; 2d. The object of the action or proceeding, and if a sum of money be claimed, the amount of the demand ; 8d. The date of the summons, and the time of its return ; and if an order to arrest the defendant be made, or a writ of attachment be is- sued, a statement of these facts ; 4th. The time when the parties or either of them appear, or their non-appearance, if default be made ; a minute of the pleadings and motions ; if in writing, referring to them ; if not in writing, a concise statement of the material parts of the pleading, and of all motions made during the trial by either party, and his decisions thereon ; 5th. Every adjournment, stating on whose application, whether on oath, evidence, or consent, and to what time ; 6th. The demand for a trial by jury, when the same is made, and by whom made ; the order for the jury, and the time appointed for the trial and return of the jury ; Tth. The names of the jury who aj^pear and are sworn ; the names of all witnesses swoiu, :uul at whose request ; 8th. The verdict of the jury, and when received ; if the jury dis- §G08 GENERAL PROVISIONS. 255 agree, and arc discharged, the fact of such disagreement and dis- charge ; 9th. The judgment of the court, specifying the costs included, and the time when rendered ; 10th. The issuing of the execution, when issued, and to whom ; the renewals thereof, if any, and when made ; and a statement of any money paid to the justice, and when, and by whom ; 11th. Tiie receipt of a notice of appeal, if any be given, and of the appeal bond, if any filed. 605. The several particulars of the last section specified shall be entered under the title of the action to which they relate, and at the time when they occur. Such entries in a justice's docket, or a tran- script thereof, certified by the justice or his successor in ofiicc, shall be primary evidence to prove the facts so stated therein. 606. A justice shall keep an alphabetical index to his docket, in which shall be entered the names of the parties to each judgment, with a reference to the page of entry. The names of the plaintiffs shall be entered in the index, in the alphabetical order of the first letter of the family names. 607. It shall be the duty of every justice, upon the expiration of his term of office, to deposit with his successor his official dockets, as well his own as those of his predecessors, which maybe in his custody, to be kept as public records. If the office of a justice become vacant by his death, or removal from the township or city, or otherwise, be- fore his successor is elected and qualified, the dockets in possession of such justice shall be deposited Avith the county clerk of the county, to be by him delivered to the successor in office of the justice. 608. [1855.] Any justice with whom the docket of his predeces- sor is deposited, may issue execution or other process, upon a judg- ment there entered and unsatisfied, in the same manner and with the same effect as the justice by whom the judgment was entered might have done. In case of the creation of a new county, or the change of the boundary between two counties, any justice into whose hands the docket of a justice formerly acting as such within the same terri- tory may come, shall, for the purposes of this section, be considered the successor of said former justice. 256 GENERAL PROVISIONS §609 609. The justice elected to fill a vacancy shall be deemed the suc- cessor of the justice whose office became vacant before the expiration of a full term. When a full term expires, the same or another per- son elected to take office in the same township, or city, from that time shall be deemed the successor. 610. When two or more justices are equally entitled under the last section to be deemed the successors in office of a justice, the county judge shall, by a certificate, subscribed by him and filed in the office of the county clerk, designate which justice shall be the successor of a justice going out of office, or whose office has become vacant. 611. The summons, execution, and every other paper made or issued by a justice, except a subpoena, shall be filled up without a blank left to be filled by another, other\\ise it shall be void. 612. In case of the sickness, or other disability, or necessary ab- sence of a justice on a return of a summons, or at the time appointed for a trial, another justice of the same township or city may, at his re- quest, attend in his behalf, and shall thereupon become vested with the power, for the time being, of the justice before whom the summons was returnable. In that case the proper entry of the proceedings be- fore the attending justice, subscribed by him, shall be made in the docket of the justice before whom the summons was returnable. If the case be adjourned, the justice before whom the summons was re- turnable, may resume jurisdiction. / e^ A 613. A justice may, at the request of a party, and on being satis- fied that it is expedient, specially depute any discreet person of suita- ble age, and not interested in the action, to serve a summons or exe- cution with or without an order to arrest the defendant, or with or without a writ of attachment. Such deputation shall be in writing on SS /) / ^ the process. -Jf^o^ A^u, , A'a-^^ lAe. 1. Tlic constable may appoint deputies. — Tatjior v. Brown, 4 Cal., 188. • 614. The person so deputed shall have the authority of a consta- ble in relation to the service, execution and return of such process, and shall be subject to the same obligations. 615. A constable, notwithstanding the expiration of his term of §619 GENERAL PROVISIONS. 257 oflfice, may proceed and complete the execution of all final process which he has begun to execute, in the same manner as if he still con- tinued in office, and his sureties shall be liable to the same extent. 616. A justice may punish as for contempt, persons guilty of the following acts, and no other : 1st. Disorderly, contemptuous, or insolent behavior towards the jus- tice while holding the court, tendhig to interrupt the due course of a trial, or other judicial proceedhig ; 2d. A breach of the peace, boisterous conduct, or violent disturb- ance in the presence of the justice, or in the immediate vicinity of the court held by him, tending to interrupt the due course of a trial, or other judicial proceeding ; 3d. Disobedience or resistance to the execution of a lawful order or process, made or issued by him ; 4th. Disobedience to a subpoena duly served, or refusing to be sworn, or answer as a witness ; 5th. Rescuing any person or property in the custody of any officer, by virtue of an order or process of the court held by him. 617. When a contempt is committed in the immediate view and presence of the justice, it may be punished summarily, for which an order shall be made reciting the facts, as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein pre- scribed. When the contempt is not committed in the immediate view ,and presence of the justice, a warrant of arrest may be issued by such justice, on which the person so guilty may be arrested and brought be- fore the justice immediately, Avhen an opportunity to be heard in his defense or excuse shall be given. The justice may thereupon dis- charge him, or may convict him of the offense. A justice may punish for contempts by fine or imprisonment, or both ; such fine not to ex- ceed in any case one hundred dollars, and such imprisonment one day. 618. The conviction, specifying particularly the offense and the judgment thereon, shall be entered by the justice in his docket. 619. Justices of the peace may issue subpoenas in any action or 258 NEW TRIALS. §620 proceeding in the courts held by them, and final process on any judg- ment recovered therein, to any part of the county. 620. Justices of the peace may issue commissions to take the dep- ositions of witnesses out of this state, and settle interrogatories to be annexed thereto, and direct the manner in Avhich the commissions shall be returned. The provisions of Title XI of this act, so far as the same arc consistent with the jurisdiction and powers of justices' courts, shall be applicable to justices' courts, and to actions and pro- ceedings therein. 621. In actions respecting "mining claims," proof shall be admit- ted of the customs, usages, or regulations established and in force at the bar or diggings embracing such claim ; and such customs, usages, or regulations, when not in conflict with the constitution and laws of this state, shall govern the decision of the action. 1. Actual possession of a portion of a mining claim according to tlic custom of miners in a given locality, extends bj' construction to the limits of the claim held in ac- cordance with such customs. — Hicks v. Bell, 3 Cal.,219. 2. This provision would seem to imply a permission on the j)art of the state to the miner, to seek wherever he chose in the gold bearing districts for the precious metals. — McClintock v. Brijden, 5 Cal., 97. 3. A nuisance working a common injury to those in possession of mining grounds, may be peaceably abated by those injured. — Styles v. Laird, ib., 120. 4. The policy of the state in conferring the privilege of working the mines, equally confers the right to divert the streams from their natural channels. — Irwin v. Phillips, ib., 140. 5. The occupation of a lot for the purpose of hotel keeiting is not inconsistent with the policy of the state with regard to mining claims. Facilities for the business of min- ing should be reasonably protected. — Fitzgerald v. Urton, ib., 308. 6. The right to mine for precious metals can only be exercised upon public lands, and although it carries with it the incidents to the right, such as the use of wood and water, those incidents must al.so be of the public domain. — Tartar v. Spring Creek ]V. and M. Co., ib., 395. 7. In a controversy between two mining companies, it was competent to prove tlic execution of certain receipts for water purchased by the plaintiffs, as tending to show the existence of the company, and that it had actually located and was in operation at the time the receipts purport to be signed. — Lone Star Co. v. West Point Co., ib., 447. 8. It is to be construed as an action to recover possession of a mining claim, where the value does not exceed two hundred dollars, but confers no jurisdiction to give damages for an injury thereto, or for its detention. — ]'itn Ettcn v. Jilson, 6 Cal., 19 ; Small V. Guinn, ib., 447. 9. Where the comi)laint alleges an injury to tlie mining claim, and a prayer for damages, the latter should be disregarded or stricken out, and the 'plaintiff be allowed §623 NEW TRIALS. 259 to try his right to the cUiim. — Van Etten v. Jilsoii, 6 Cal., 19 ; Grass VaUcy M. Co. v. Stackhouse, ib., 413. 10. The statute making tlie possessory rights of settlers on jjuIjIIc lands for agricul- tural or grazing ])urposes, yield to the rights of miners, has legalized what would other- wise be a trespass, but it cannot be extended to a class of cases not especially provid- ed for. — Burdge v. Underwood, ib., 45. 11. A miner has no right to dig within an enclosure surrounding a dwelling iiouse or other improvements of another. — lb. 12. The fact that the parties in possession of a gold mine are foreigners and have obtained no license, affords no apology for trespassers. — Mitchell v. Hagood, ib., 148. 13. Mining laws, when introducjd in evidence, are to be construed by the court, and the (juestion whether by virtue of such laws a forfeiture had accrued, is a question of law, and cannot therefore be properly submitted to a jury. — Fairbanks v. Woodliouse, ib., 433. 14. In the absence of mining rules, the fact that a party has located a claim bounded by another, raises no implication that they correspond in size or direction of lines. — Live Yankee Co. v. Oregon Co., 7 Cal., Jan, T. 15. The owner of a mining claim has, in practical effect, a good vested title to the property in the mine, and should be so treated until liis title is divested by the exercise of the higher right of his superior proprietor. — Merced Mining Co. v. Fremont, 7 Cal., April T. 16. An appropriation of public land carries with it all the privileges and incidents of ownership, against every one but the government, subject only to rights antecedently acquired. — Crandall v. Wood, 7 Cal-, Oct. T. 17. A verbal lease of a mining claim cannot be enforced against the claim of a pur- chaser without notice of the lease. — Jenkins v. Redding, 7 Cal., Oct. T. 622. A new trial may be granted by the justice, on motion, within ten days after the entry of judgment, for any one of the following causes : 1st. Accident or surprise, which ordinary prudence could not have guarded against ; 2d. Excessive damages, appearing to have been given under the influence of passion ; or, 3d. Insufficiency of the evidence to justify the verdict or other de- cision ; 4th. Newly discovered evidence material for the party making the application, which he could not with reasonable diligence have discov- ered and produced at the time. 623. The application shall be made upon affidavit and notice. The affidavit shall be filed with the justice, with a statement of the grounds upon which the party intends to rely. The adverse party may use 260 APPEALS TO COUNTY COURT. §624 counter affidavits on the fnotion, provided they be filed one day previ- ous to the hearing of the motion. 624. [1853, 1854.] Any party dissatisfied with a judgment ren- dered in a justice's court, may appeal therefrom to the county court of the county, at any time within thirty days after the rendition of the judg- ment. The appeal shall be taken by filing a notice of appeal with the justice, and serving a copy on the adverse party. The notice shall state whether the appeal is taken from the whole or a part of the judg- ment, and if from a part, what part, and whether the appeal is taken on questions of law or fact, or both. 1. Service on the attorney is deemed service on the adverse party. — Welton v. Gari- baldi, 6 Cal., 245 ; Coulter v. Star!:, 7 Cal., Jan. T. ; Coombs v. Stark, 7 Cal., ib. 2. A mistake in the notice that the judgment was entered on the 4th of July, instead of the 2d July, is not material. — Slierman v. Rolberg, 8 Cal., Jan. T. 3. If the party against whom judgment is rendered, consents that it be opened and the cause tried, a subsequent judgment rendered against such party will be regular. — Scranton v. Levy, 4 Abbott, 21. 4. AVhere the notice does not state the grounds npon which the appeal is founded, the county court is bound to affirm the judgment. — Derby v. Uannin, 5 Abbott, 150. 625. [1853, 1854.] "When a party appeals to the county court on questions of law alone, he shall, within ten days after the rendition of udgment, prepare a statement of the case, and f\le the same with the ustice. The statement shall contain the grounds upon which the party intends to rely on the appeal, and so much of the evidence as may be necessary to explain the grounds, and no more. Within ten days after he receives notice that the statement is filed, the adverse party, if dissatisfied with the same, may file amendments ; the proposed state- ment and amendments shall be settled by the justice ; and if no amendments be filed, the original statement shall be adopted. The statement thus 'adopted, or as settled by the justice, with a copy of the docket of the justice, and all motions filed with him by the parties during the trial, and the notice of appeal, shall be used on the hearmg of the appeal before the county court. 626. [1854.] When a party appeals to the county court on ques- tions of fact, or on questions of both law and fact, no statement need be made, but the action shall be tried anew in the county court. 627. [1853, 1855.] Upon receiving the notice of appeal, and on §628 APPEALS TO COUNTY COURT. 261 payment of the fees of the justice, and filing an undertaking as re- quired in the next section, the justice shall, within five dajs, transmit to the clerk of the county court : if the appeal be on questions of law alone, a certified copy of his docket, the statement as admitted or as settled, the notice of appeal, and the undertaking filed ; or if the ap- peal be on questions of fact or both law and fact, a certified copy of his docket, the pleadings, all notices, motions and other papers filed in the cause, the notice of appeal and the undertaking filed ; and the justice may be compelled by the county court, by an order entered upon motion, to transmit such papers, and may be fined for neg- lect or refusal to transmit the same. A certified copy of such order may be served on the justice, by the party or his attorney. In the county court, either party shall have the benefit of all legal objections made in the justice's court. 1. A justice of the peace may refuse to send up the transcript of a cause tried by him, unless all his legal fees be first paid by the appellant.-^jl/eZ>ermo/;< v. Douqlass, 5 Cal., 89 ; Bray v. Redman, 6 Cal., 287. 2. The appeal will not be dismissed because the justice fails to send up the notice on appeal. An order should be entered, compelling him to do so. — Sherman v. Rolhen/, 8 Cal., Jan. T. 3. Where a party on appealing to the county court executes an undertaking with sureties, and flie county court reverses the judgment of the justice, and on appeal to the supreme court, that court reverses the judgment of the county court and atlirms the judgment of the justice, the sureties are liable not merely for the amount of the jud"-- ment in the county court, but for the amount recovered in the supreme court. — Smith T. Cronise, 24 Barb., 671. 628. [1854, 1855.] An appeal from a justice's court shall not be effectual for any purpose, unless an undertaking be filed, with two or J ^ ^0 more sWeties^m the sum of one hundred dollars, for the payment of " the costs on tha^appeal ; or if a stay of proceedings be claimed, in a sum equal to twice tEelnnettut,of the judgment, including costs, when the judgment is for the payment oT'nion^ ; or tw^ce the value of the property, including costs, when the judgment, is for the recovery of specific personal property ; and shall be condititoed, when the action is for the recovery of money, that the appellant wnl pay the amount of the judgment appealed from, and all costs, if the appeal be withdrawn or dismissed, or the amount of any judgment ancjxftll costs that may be recovered against him in said action, in the county court. Where the action is for the recovery of specific personal property, the undertak- sm 262 APPEALS TO COUNTY COURT. §629 ing shall be conditioned that the appellant will pay the judgment and costs appealed from, and obey the order of the court made therein, if the appeal be withdrawn or dismissed, or any judgment and costs that may be recovered against him in said action in the county court, and Avill obey any order made by the court therein. The undertaking shall be accompanied by the affidavit of the sureties that they are residents of the county, and are each worth the amount specified in the under- taking, over and above all their just debts and liabilities, exclusive of property exempt from execution ; or the bond shall be executed by a sufficient number of sureties, who can justify in the aggregate to an amount equal to double the amount specified in the bond, or a deposit of the amount of the judgment, including all costs, appealed from, or of the value of the property, including all costs in actions for the recovery of specific personal property, with the justice ; and such deposit shall be equivalent to the filing of the undertaking in the Act mentioned, and in such cases the justice shall transmit the money to the clerk of the county court, to be paid out upon the order of the court. 629. If an execution be issued, on the filing of the undertaking staying all proceedings, the justice shall, by order, direct the officer to stay all proceedings on the same. Such officer shall, upon payment of his fees for services rendered on the execution, thereupon relin- quish all property levied upon, and deliver the same to the judgment debtor, together with all moneys collected from sales or otherwise. If his fees be not paid, the officer may retain so much of the property or proceeds thereof, as may be necessary to pay the same. 630. [1853, 1854.] Repealed. 631. [1854, 1855.] Costs shall be allowed to the prevailing party in a justice's court. 632. [1854, 1855.] Repealed. 633. Justices of the peace shall receive from the sheriff or consta- bles of their county, all moneys collected on any process or order issued by their courts respectively, and all moneys paid to them in their offi- cial capacity, and shall pay the same over to the parties entitled or authorized to receive them, without dclav. For ^ a violation of this §638 PROCEEDINGS IN RECORDERS' AND MAYORS' COURTS. 263 section, tliey may be removed from tlieir office and shall be deemed guilty of a misdemeanor. 634. Justices of the peace may, in all cases, require a deposit of money, or an undertaking, as security for costs of court, before issuing a summons. 635. The provisions ^ sections five hundred and nineteen, five " hundred and twenty, five huMmi and twenty-three, five hundred and JlH^ twenty-five, five hundred and twfeuty-six, five hundred and twenty- 'Lt / seven, five hundred and thirty-oneYnd five hundred and thirty-two, ,-- ^ shall be applicable to justices' courj;«'and actions therein. ^^ / TITLE XVII. OF PROCEEDINGS IN CIVIL CASES IN RECORDERS' AND MAYORS' COURTS. 636. Civil actions in recorders' and mayors' courts shall be com- menced by filing the complaint, setting forth the violation of the ordi- nance complained of, with such particulars of time, place, and manner of violation, as to enable the defendant to understand distinctly the character of the violation complained of, and to answer the complaint. The ordinance may be referred to by its title. The complaint shall be verified by the oath of the party complaining, or of his attorney or agent. 1 . The recorder of the city of Sacramento has no jurisdiction in cases of forcible entry and unlawful detainer. — Cronise v. Carghill, 4 Cal., 120. 637. Immediately after filing the complaint, a summons shall be issued, directed to the defendant, and returnable either immediately, or at a time designated therein, not exceeding four days from the date of its issuance. 638. On the return of the summons the defendant may plead to the complaint, or he may answer or deny the same. Such plea, an- swer, or denial, may be oral or in writing, and immediately thereafter the case shall be tried, unless for good cause shown, an adjournment be granted. 264 MISCELLANEOUS PROVISIONS. §639 639. In all cases for violation of an ordinance where the fine, for- feiture, or penalty imposed bj the ordinance, is less than fifty dollars, the trial shall be bj the court. In actions where the fine, forfeiture, or penalty imposed by the ordinance, is over fifty dollars, the defendant shall be entitled, if demanded by him, to a jury of six persons. 640. From a judgment in a civil action in a recorder's or mayor's court, an appeal may be taken to the county court. The appeal shall be taken and the proceedings thereon conducted in the same manner as appeals are taken from a judgment in a civil action in a justice's court, and as the proceedings thereon are conducted. 641. All proceedings in civil actions in recorders' and mayors' courts, except as herein otherwise provided, shall be conducted in the same manner as in civil actions injustices' courts. 642. The provisions of this title shall be applicable to civil actions in recorders' and mayors' courts already established, or which may hereafter be established in any incorporated city of this state. TITX.E XVIII. MISCELLANEOUS PROVISIONS. 643. The supreme court may make rules not inconsistent with the constitution and laws of the state, for its own government, and the government of the district courts ; but such rules shall not be in force until thirty days after their adoption and pubhcation. 644. The county clerk shall be clerk of the county court, the court of sessions, and the probate court of his county. 645. If an action be brought against a sherifi" for an act done by virtue of his office, and he give written notice thereof to the sureties on any bond of indemnity received by him, the judgment recovered therein shall be conclusive evidence of his right to recover against such §648 MISCELLANEOUS PROVISIONS. 265 sureties ; and the court or judge in vacation may, on motion, upon no- tice of five days, order judgment to be entered up against them for the amount so recovered, inchiding costs. 646. [1857.] In the counties of Santa Clara, Santa Cruz, Mon- terey, San Luis Obispo, Santa Barbara, Contra Costa, Los Angeles and San Diego, it shall be the duty of the officer to give the defend- ant, in (X civil action, if said defendant shall require it, a copy of the summons or other process in the Spanish language ; and in the coun- ties of Santa Barbara, San Luis Obispo, Los Angeles, and San Diego, Monterey and Santa Cruz, it shall be lawful, with the consent of both parties, to have the process, pleadings, and other proceedings in a cause, in the Spanish language. 647. Words used in this act in the present tense, shall be deemed to include the future as well as the present ; words used in the singu- lar number shall be deemed to include the plural, and the plural the singular ; writing shall be deemed to include printing or printed paper ; oath to include affirmation or declaration ; signature or subscription to include mark when the person cannot write, his name being written near it, and witnessed by a person who writes his own name, as a Avitness. 648. The following statutes, namely : the Act entitled " An Act to regulate proceedings in civil cases in the district court, the superior court of the city of San Francisco, and the supreme court," passed April twenty-second, eighteen hundered and fifty ; the Act entitled " An Act to regulate proceedings against debtors by attachment,'' passed April twenty-second, eighteen hundred and fifty ; the Act en- titled " An Act providing for the collection of demands against vessels and boats," passed April tenth, eighteen hundred and fifty ; the Act entitled " An Act to regulate proceedings in courts of justices of the peace in civil cases," passed April tenth, 1850 ; and the Act entitled " An Act to regulate proceedings in the county courts in cases of ap- peal from the courts of justices of the peace," passed April eleventh, eighteen hundred and fifty ; the Act entitled " An Act respecting set- offs," passed [April] twenty-second, eighteen hundred and fifty, are hereby repealed ; but such repeal shall not invalidate any judgment R 266 MINING CLAIMS. §649 rendered, or order made, or any proceeding already taken by virtue of said statutes. 649. This Act shall take effect on the first day of July, of the present year. 650. [1854.] In all cases where an undertaking with sureties is required by the provisions of said act, the judge, justice, clerk, or other officer taking the same, shall require the sureties to accompany the same with an affidavit that they are each worth the sum specified in the undertaking, over and above all their just debts and liabilities, exclusive of property exempt from execution ; provided^ that when the amoimt specified in the undertaking exceeds three thousand dollars, and there are more than two sureties thereon, they may state in their affidavits that they are severally worth amounts less than that ex- pressed in the undertaking, if the whole amount be equivalent to that of two sufficient sureties. 1. Plaintiffs are not bound to delay suit on an undertaking until after issue and re- turn of the execution. — Nickersonv. Chatterton, 7 Cal., April T. 2. The affidavit is sufficient, if, when fairly construed, it comply with the statute. — Taaffey. RosenthaU, 7 Cal., April T. 3. Where a mere defective undertaking has been bona fide ffiven, and the party will file a good one before the case is submitted, a court should permit iiim to do so. — Bry- an V. Berry, 7 Cal., July T. ; Cunningham v. Hopkins. — 76. 4. In an action against sureties to save from a legal liability, the complaint need not aver actual damage ; in such cases the legal liability is the measure of damages. McGee v. Roen, 4 Abbott, 8. 651. [1854, 1855.] In actions respecting miners' claims, in a justice's court, the justice shall have power, upon application of the party out of possession of the claim or claims, after notice of one day to the adverse party, to appoint a receiver of the proceeds of the claim, pending the action. If the parties agree upon a person, he shall be appointed such receiver ; if the parties do not agree, the justice shall appoint a receiver, who shall take an oath which shall be filed with the justice, that he is not interested in the action between the parties, and that he will honestly keep an account of all gold dust or metals of any kind, the proceeds of the claim or claims in dispute. After the ap- pointment of such receiver, the justice shall have power to issue a writ- ten order to any sheriff or constable, to put such receiver into posses- sion of such claim, which order said sheriff or constable shall execute. §654 GENERAL PROVISIONvS. 267 and the receiver shall remain in possession of the claim or claims, so long as said action may remain undetermined in any court. The court in which the action may be pending, shall have the authority upon the application of either party, with two days' notice to the other, from time to time, to make such orders for the disposition of the proceeds oi such claim or claims, for the safety of the same, as may seem proper. The court in which the action may be pending, shall also have power, upon application of the receiver, based upon his affidavit, to punish as for contempt, all persons who have been guilty of disturb- ing the receiver in the possession of the claims. 652. [1854.] The receiver mentioned in the last section, shall keep an accurate account of all the proceeds of the claim pending the action, and of all amounts paid out for working the same, and shall re- tain the proceeds and pay the same over, pursuant to the order of the court. The receiver shall also be required, on demand of either party to give security for the faithful performance of his trust, and shall be allowed for the same a reasonable compensation, to be paid out of the proceed of the claim in his hands, but in no case exceeding ten per cent, upon such proceeds. 653. [1854.] Writs of certiorari and mandamus, may be issued in the cases prescribed by said act, by a judge of the supreme court, district court, or county court, in vacations, and may in the discretion of the judge issuing the writ, be made returnable, and a hearing may be had on the return thereof in the vacation. See Sees. 456, 467. 654. [1854.] Whenever property has been taken by an officer, under a writ of attachment, in pursuance of the provisions of said act, and it shall be made to appear satisfactorily to the court, or a judge thereof, or a county judge, that the interest of the parties to the action will be subserved by a sale thereof, the court or judge may order such property to be sold in the same manner as property is sold under an execution, and the proceeds to be deposited in court to abide the judg- ment in the action. Such order shall be made only upon notice to the adverse party, or his attorney, in case such party has been personally served with a summons in the action. See Sees. 130,221. 268 GENERAL PROVISIONS. §655 655. [1854.] A copy of any record, document, or paper in the custody of a public officer of this state, or of the United States, within this state, certified under the official seal, or verified by the oath of such officer, to be a true, full and correct copy of the original in his custody, may be read in evidence in an action or proceeding in the courts of this state, in the like manner and with the hke effect, as the original could be if produced. See Sees. 448, 449. 656. [1854.] When two or more persons associated in any busi- nesss, transact such business under a common name, whether it com- prises the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates, but the judgment in such cases shall bind only the joint property of the associates. 657. [1854.] All decisions given upon an appeal, in any appellate court of this state, shall be given in writing, with the reason therefor, and filed with the clerk of the court, but this section shall not apply to actions tried with a jury anew in the county court, or on appeal from a justice's court. 658. [1854.] A defendant against whom an action is pending, upon a contract or for specific personal property, may at any time be- fore answer, upon affidavit that a person not a party to the action makes against him, and -without any collusion with him, a demand upon the same contract, or for the same property, upon due notice to such person, and the adverse party, apply to the court for an order to sul> stitute such person in his place, and discharge him from liability to either party on his depositing in court the amount claimed on the con- tract, or delivering the property or its value to such person as the the court may direct, and the court may, in its discretion, make the order. 1 . This order can only be made when it is certain that the only question is, whether the j>luiutitF or a third person is the true owner of the debt, fund or other property for which judgment is demanded. — Slifriiian v. Partriili/e, 4 Ducr, 646. 659. [1854.] Any person shall be entitled to intervene in an ac- tion who has an interest in the matter in litigation, in the success of §6G4 INTERVENTION. 269 either of the parties to the action, or an interest against both. An intervention takes phice when a third person is permitted to become a party to an action between other persons, either bj joining the plain- tiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding any- thing adversely to both the plaintiff and the defendant. 1. Sustained. — Brouks v. linger, 5 Cal., 281; Sanjeant v. Wilson, 5 CaL, 504 ; Yuba county v. Adams, 7 Cal., Jan. T. 2. The petition of an intervenor must be treated as a declaration or complaint. — Peoplev. Talmaije, 6 Cal., 256. 3. In an action to foreclose a mortgage upon property claimed as a homestead, the wife should be allowed to intervene. — Sanjeant v. Wilson, 5 Cal., 504. 4. On intervention, if the proceedings between the debtor and a prior creditor, are not void, but voidable, the defendant can alone object. — Dixei/ v. Pollock, 7 Cal., Oct. T. 660. [1854.] A third person may intervene, either before or after issue has been joined in the cause. 661. [1854.] The intervention shall be by petition or complaint, filed in the court in which the action is pending, and it must set forth the grounds on Avhich the intervention rests. A copy of the petition or complaint shall be served upon the party or parties to the action against whom anything is demanded, who shall answer it as if it were an original complaint in the action. 662. [1854.] The court shall determine upon the intervention at the same time that the action is decided ; if the claim of the party in- tervening is not sustained, he shall pay all costs incurred by the intervention. 663. [1854.] On the trial of any action in a court of record, either party may require the clerk to take dow^i the testimony in writing. 1 . A transcript of which, cei'tified by the clerk, is a substitute for a bill of exceptions or statement of facts in their absence. — Inr/rahamv. Gildemeester, 2 Cal., 161. 664. [1854.] The party obtaining the postponement of a trial, in any court of record shall also, if required by the adverse party, con- sent that the testimony of any witness of such adverse party, who is in attendance, be then taken by deposition before a judge or clerk of the court in which the case is pending, or before such notary public as the 270 GENERAL PROVISIONS. §665 court may indicate, which shall accordingly be done, and the testimony so taken may be read on the trial with the same eifect, and subject to the same objections, as if the witness were produced. 665. [1854.] Whenever costs are awarded to a party by an ap- pellate court, such party may have an execution for the same on filing a remittitur with the clerk of the court below, and it shall be the duty of such clerk whenever the remittitur is filed, to issue the execution upon application therefor ; and whenever costs are awarded to a party by an order of any court, such party may have an execution therefor in like manner as upon a judgment. 1. When a remittitur is sent down, the clerk of the district court may issue execu- tion for costs. — Mayor of Mary sville v. Buchanan, 3 Cal., 212. 666. [1854.] Sections five, six, seven, fifteen, sixteen, seventeen, eighteen, nineteen and twenty, of the act entitled " an act amendatory of and supplementary to the act entitled ' an act to regulate proceed- ings in civil cases in the courts of justice in this state,' " passed May eighteenth, one thousand eight hundred and fifty-three, are hereby repealed, and the sections amended by said amendatory act, shall stand revived as amended by this act. 667. [1854.] This act shall take effect on the first day of July, one thousand eight hundred and fifty-four. 1. This Section refers to Sees. 650, et seq. f-Ld^ C^c^- c/f^ ^^ ■-^v^^a^^ '/-L-CJO ^ /tC' <^PZ ^^r^ijaSbi-^i-^-^^ §2 FORCIBLE ENTRIES AND UNLAWFUL DETAINERS. 271 AN ACT CONCERNING FORCIBLE ENTRIES AND UNLAWFUL DETAINERS. PASSED APRIL 22, 1850. The People of the State of California represented in Senate and Assembly, do enact as follows : \. No person or persons shall hereafter make any entry into lands, tenements, or other possessions, but in cases where entry is given by law, and in such cases, not with strong hand nor with multitude of people, but only in a peaceable manner ; and if any person from hence- forth do to the contrary, and thereof be duly convicted, he shall be punished by fine. 1. When a party of four or five men enter a building occupied by another, in the night time, during the hours of sleep, and take possession, and avow their intention to keep possession, and actually do so, it is sufficient evidence of force to maintain this action. — Scarlett v. Lamarqite, 5 Cal., 63. 2. To sustain this action, actual force, threats of violence, or just apprehension of violence to person, must be shown to have existed, unless the detainer be riotous. — Frazier v. Hanlon, 5 Cal., 156 ; Willard v. Warren, 17 Wend., 257. 3. Facts amounting to a mere trespass, are not sufficient to maintain this action. — Frazier v. Hanlon, 5 Cal., 156. 4. This act is in derogation of the common law, and must be strictly construed. — House V. Reiser, 7 Cal., Oct. T. 2. Any justice of tUfe peace shall have authority to inquire, as hereinafter directed, as well against those who make unlawful or forci- ble entry into lands, tenements, or other possessions, and detain the same, as against those who, having lawful and peaceful entry into lands, tenements, or other possessions, unlawfully detain the same ; 272. FORCIBLE ENTRIES AND UNLAWFUL DETAINERS. §3 and if it be found, upon such inquiry, that an unlawful or forcible en- try hath been made, and that the said lands, tenements, or other pos- sessions, after a lawful entry, are held unlawfully, then such justice shall cause the party complaining to have restitution thereof. 1. The recorder of the city of Sacramento has no jurisdiction in these cases. — Cro- nise V. CarghiU, 4 CaL, 120. 2. In this action the holding over the land is the foundation of the action, and must be proven. — Reed v. Grant, 4 Cal., 176. 3. A description of the land sufficiently definite to enable the administration of sub- stantial justice, is all that is required. — Hernandez v. Simon, 4 Cal., 182. 4. This action is a snmmary proceeding provided by statute, and does not belong to the district courts, by virtue of their constitutional jurisdiction. — Ramirez v. Murray, 4 Cal., 293 ; Townsend v. Brooks, 5 Cal., 52. 5. A landlord cannot maintain this action in his own name for an unhiwful entry upon the possession of his tenant. — Treat v. Stuart, 5 Cal., 113. 6. This statute provides a remedy for unlawful as well as forcible entry, and its policy is doubtless to avoid nice distinctions as to what constitutes force. — Moore v. Goslin, 5 Cal., 266. 7. The jurisdiction vested in justices' courts to try these cases is not unconstitution- al.— 0'Ca/%/(«« V. Booth, 6 Cal., 63 ; Ifart v. Moon, ib., 161. 8. In an action for holding over after the expiration of the term, three days' notice is all that is required. — Garbrell v. Fitch, ib., 189. 9. The jurisdiction of the justices in these cases arises from the ^'im*/ criminal na- ture thereof, and falls under the head of " special cases," as used in the constitution. — Small V. Gwinn, ib., 447. 3. When any complaint shall be made in writing to any justice of the peace, of any such unlawful or forcible entry, or unlawful detainer, said justice shall issue a summons, directed to the sheriff or any con- stable of the county, commanding him to summon the person or per- sons against whom such complaint shall have been made, to appear be- fore the said justice on a day in such summons named, which shall not be less than ten days from the day of issuing the summons, and at the place therein mentioned. 1. A tenant in common cannot sustain an action of forcible entry and detainer against his co-tenant for holding over. The land must first be partitioned. — Lick v. O'Donnell, 3 Cal., 59. 2. The statute docs not require an allegation of possession by the plaintiff"; this objection is at most only subject to demurrer. — Cronise v. CarghiU, 4 Cal., 120. 3. The rule that a penal statute must be declared upon by the party seeking recov- ery under it, does not apply to pleadings in justices' courts. — O'Gillaghan v. Booth, 6 Cal., 63. §7 FORCIBLE ENTRIES AND UNLAAVFUL DETAINERS. 273 4. The complaint need not pray for treble damages, to warrant the court in so ad- judging. — Hart V. Moon, ib., IGl. 4. Such summons shall be served upon the person or persons against whom the same is issued, by delivering a certified copy thereof to such person or persons, at least two days before the return day thereof ; and the officer serving the same shall make a special return of the time and manner of serving such summons. 5. After the return of the summons, served as hereinbefore pro- vided, and at the time and place appointed in said summons, the jus- tice shall proceed to hear and determine said complaint, unless either party shall demand a jury ; in which case the justice shall issue a venire for a jury in the same manner and upon the same terms as in other cases provided for trial by jury in justices' courts, and such jury shall be sworn as in other cases. 6. If, at the time of making of such complaint, it shall be made to appear that the person or persons against whom said complaint is made, or either of them, are absent from the county, it shall be the duty of the justice before whom the same is made, to issue his sum- mans as hereinbefore provided, and the same may be served by leav- ing a certified copy thereof at the last and usual place of abode of such person or persons, not less than two days before the return day thereof, which copy shall be left Avith some member of the family, or some per- son residing at such place, of suitable age and discretion, to whom the contents thereof shall be explained by the officer leaving the same, and the officer shall make a special return of the time and manner of serving said summons, and the suit shall thereafter proceed the same as though aj)ersonal service were had of such summons. 7. The justice may, at his discretion, adjourn any trial under this act, not exceeding ten days, and when the defendant, his agent or at- torney, shall make oath that he cannot safely proceed to trial, for want of some material witness, naming him, that he has made due exertion to obtain such witness, and beUeves, if an adjournment be allowed, he will be able to procure the attendance of such witness, or his deposi- tion, hi time to produce the same upon trial ; in which case, if such person or persons will give bond, with one or more sufficient sureties, 274 FORCIBLE ENTRIES AND UNLAWFUL DETAINERS. §8 conditioned to pay the said complainant for all rent that may accrue during the pending of such suit, and all costs and damages consequent upon such adjournment, the said justice shall adjourn said cause for such reasonable time as may appear necessary, not exceeding three months. 8. The testimony of any witness, which may be considered neces- sary by either party, may be taken in the same manner, and with the like effect, as is provided for the taking of testimony in other cases in justices' courts. 9. On the trial, the complainant shall only be required to show, in addition to the forcible entry or detainer complained of, that he was peaceably in actual possession at the time of the forcible entry, or was entitled to the possession of the premises at the time of a forcible hold- ing over. The defendant may show in his defense that he, or his an- cestors, or those whose interest in such premises he claims, have been in quiet possession thereof for the space of one whole year together next before the said inquisition, and that his interest therein is not then ended or determined, and such showing shall be a bar to the pros- ecution, and in no case Avhen the title of land is necessarily involved, shall a justice of the peace have cognizance. 1 . The plaintiff in this action must show an actual peaceable possession in himself, at the time of the entry. — Treat v. Stuart, 5 Cal., 113. 2. What is actual and what constructive possession, in many cases must be a ques- tion of fact for the jury. — O'Calhgkan v. Booth, 6 Cal., 63. 3. When the plaintiff in an action for a forcible entry for the front of a town lot, proved tliat he had a small house on the rear of it, luld, sufficient to warrant a jury in finding an actual possession of the whole lot. — lb. 4. A mere survey and marking lines of a boundary, without an enclosure of the premises, is not a possession in law, unless made so by complying with the statute in reference to the mode of maintaining possessory actions on public land. — Bird v. Den- nison, 7 Cal., April T. 5. The possession must be actual, peaceable and exclusive, and not a mere scramb- ling or interrupted possession, or the exercise of casual acts of ownership over the premises. — House v. Keiser, 7 Cal., Oct. T. 10. If upon the trial of any complaint under this act, the justice or jury shall find the defendant or defendants, or either of them, guilty of the allegations in the complaint, said justice shall thereupon enter judgment for the complainant to have restitution of the premises, §13 FORCIBLE ENTRIES AND UNLAWFUL DETAINERS. 275 and shall impose such fine, not exceeding one hundred dollars, consid- ering all the circumstances, as he may deem just, and shall tax the costs for the complainant, and may issue execution therefor ; and the said justice shall also award and issue a writ of restitution ; but if the said justice or the jury find that the person complained of is not guilty, the justice shall tax the costs against the complainant, and issue exe- cution therefor. 11. If the jury empannelled cannot agree upon a verdict, the jus- tice may, with the consent of the parties, discharge them, and issue a venire returnable forthwith, or at some other time agreed upon by the parties. 12. In all cases of a verdict by the justice or jury for the complain- ant, the damages shall be assessed as well for waste and injury com- mitted upon the premises, as for the rents and profits during such de- tainer ; and the verdict shall also find the monthly value of the rents and profits of the said premises ; and the complainant shall be entitled to recover treble damages against the persons against whom judgment has been rendered, which damages shall be assessed by the justice or jury, and when so assessed shall be trebled by said justice, and entered as a judgment in the cause upon which execution may issue. 1 . A., in pursuance of the provisions of the "Act prescribing the mode of maintain- ing and defending possessory actions on lands belonging to the United States," entered upon unoccupied land, and marked it out, so that its boundaries might be easily traced, and commenced to build a house upon it, when he was ousted by B. ; held, in an action of forcible entry, A. could recover the land from B., but without a fine or- treble dam- ages. — Stark V. Barnes, 4 Cal,, 412. . 13. When any person shall hold over any lands, tenements, or other possessions, after the termination of the time for which they are demised, or let to him or her, or to the person under whom he or she holds possession, or contrary to the conditions or covenants of the lease or agreement under which he or she holds, or after any rent shall be- come due according to the terms of such lease or agreement, and shall remain unpaid for the space of three days, in all such cases, if the lessor, his heirs, executors, administrators, assigns, agent or attor- ney, shall make demand in writing of such tenant, that he or she shall deliver possession of the premises held as aforesaid, and if such tenant shall refuse or neglect for the space of three days after such demand, 276 FORCIBLE ENTRIES AND UNLAWFUL DETAINERS, §14 to quit the possession of such lands or tenements, or to pay the rent thereof, due and unpaid as aforesaid, upon complaint therefor to any justice of the peace of the proper county, the justice shall proceed to hear, try, and determine the same, in the same manner as in other cases hereinbefore provided for, but shall impose no fine upon any such case mentioned in this section. 1. By the terms of an award, which was decisive between a landlord and his tenant, the tenant was to quit the premises on the 9th ; held, the landlord had no right to give notice before the 10th. The tenant had then six days to remove, wherefore an action commenced on the 10th was premature. — Ray v. Armstromj, 4 Cal., 208. 14. The preceding section shall not extend to any person who has, or shall have continued in possession one year after the termmation of the time for which the premises Avere demised, or leased, or let to him or her, or those under whom he or she holds possession, or to any person who continues in possession three years, quietly and peaceably. 15. Every person summoned as a juror, or subpoenaed as a wit- ness, who shall not appear, or who, appearing, shall refuse to serve or give evidence in any prosecution instituted under this act, shall forfeit and pay for every such default or refusal, to the use of the county, unless some reasonable cause be assigned, such fine not exceeding twenty dollars, as the said justice shall think proper to impose, and execution may issue therefor. 16. [1858.] If either party shall feel aggrieved by the verdict of the jury or decision of the justice, he may appeal within ten days, as in other cases tried before justices of the peace, and he shall give bond with two or more sufficient sureties, to be approved by said justice, conditioned to pay all costs of such appeal, and abide the order th^ court may make therein, and pay all rent and other damages justly accruing during the pendency of such appeal ; and vpon the filing of the notice of apj^eal, and the affidavit of the appellant that the appeal is taken in good faith, and that he intends to perfect said appeal, the justice shall grant a stag of the writ of restiti(tio7i,for not exceeding tivo dags, for the p)urpose of allowing the appellant an opyportimity to file his appeal bond, and for no other. 17. [1852.] Upon taking such appeal, all further proceedings in the case shall be thereby stayed, and the appellate court, in all cases §21 FORCIBLE ENTRIES AND UNLAWFUL DETAINERS. 277 which are now pending or which may be hereafter brought, shall proceed to try the case anew, and shall issue all necessary Avrits and process to caiTy out the provisions of this act. All laws or parts of laws which require a statement of the case or evidence, or exceptions to be taken before a justice of the peace, on the trial of a case for forcible entry and unlawful detainer, in order to perfect an appeal, are hereby re- pealed, and the same shall be tried in the appellate court, on the evi- dence introduced before said appellate court. 1. The authority of the court totiy these cases anew, on appeal, is the exercise of appellate and not original jurisdiction. — Tomsend v. Broolcs, 5 Cal., 52. 2. The power of the county court to treble the damages by way of penalty in ac- tions of forcible entry, results by necessary implication from its power to try the case anew. — 0' Calhujhan v. Booth, 6 Cal., 6.3. 18. If a writ of restitution shall have been issued previous to the taking of the appeal, the justice shall give the appellant a certificate of the allowance of such appeal, and upon the serving of such certifi- cate upon the officer having such writ of restitution, said officer shall cease all further proceedings by virtue of such writ, and if such writ shall not have been completely executed, the parties in possession shall remain in possession of the premises until the appeal shall be deter- mined. 19. In all cases of appeal under this act, the appellate court shall not dismiss or quash the proceedings for want of form, only provided the proceedings have been conducted substantially according to the provisions of this act. 20. Amendments to the complaint, answer, or summons, in mat- ters of form only, may be allowed by the court at any time before final judgment, upon such terms as may be just, and all matters of ex- cuse, justification, or avoidance of the allegations in the complaint, may be given in evidence under the answer. 21. The following, or equivalent forms, may be used in proceed- ings under this act, to wit : SUMMONS. The people of the state of California To the sheriff or any constable of the county aforesaid : 278 FORCIBLE ENTRIES AND UNLAWFUL DETAINER. §21 Whereas, A. B., of the county of hath exhibited to me, a justice of the peace for said county, a complaint against C. D., of the county of for that the said C. D., of the county of on the day of A. D., at the county of (here in- sert the substance of the complaint with sufficient certainty.) You are therefore commanded to summon the said C. D., if he be found in your county, to be and appear before me at my office, (or stating the place) on the day of A. D., , then and there to make answer unto the complaint aforesaid. Given under my hand and seal, this day of A. D., . E. F., Justice of the Peace. WRIT OF RESTITUTION. The people of the state of California Tci the sheriff, or any constable of the county aforesaid : Whereas, A. B., of the county of at a court of inquiry of an unlawful or forcible entry, or unlawful detainer, (as the case may be) held at my office (or state the place) in the county aforesaid, on the day of A. D., , before me, a justice^ of the peace for the county aforesaid, by the consideration of the court, hath recovered judgment against C. D., to have restitution of (here describe the premises, as in the complahit). You arc therefore commanded that, taking with you the force of the county, if necessary, you cause the said C. D. to be immediately removed from the aforesaid premises, and the said A. B. to have peaceable restitution of the same ; and you are also commanded that, of the goods and chattels of the said C. D., within said county, you cause to be made the sum of dollars, for the said plaintiff, together with the costs of suit endorsed hereon, and make return hereof within thirty days from this date. Given under my hand, this day of A. D.,-t . E. F., Justice of the Feace. 1. Tliis writ docs not determine cither the right to the property or the right of pos- session, and constitutes no defense to an action of ejectment. — Mitchell v. Hagood, 6 Cal., 148. RULES OF THE SUPREME COURT OF CALIFORNIA. I. Applicants for license to practice as attorneys and counselors of this court may be examined on the first day of each term. II. In all cases where an appeal is perfected, and the statement set- tled, if there be one, twenty days before the commencement of the next succeeding term of this court, the transcript of the record shall be filed on or before the first day of such term. III. If the transcript is not filed within the time prescribed, the appeal may be dismissed, on motion, during the first week of the term without notice, upon satisfactory evidence of the omission. A cause so dismissed may be restored during the same term, upon good cause shown, on notice to the opposite party ; and unless so restored, the dismissal shall be final ; and a bar to any other appeal in the same cause. IV. Satisfactory evidence of the omission to file the transcript shall be deemed to be the certificate of the clerk below, under the seal of the court, certifying the amount or character of the judgment, the date of its rendition, and that no appeal has been taken ; or, if an ap- peal has been taken, the time when perfected, and also that the appel- 280 RULES OF THE SUPREME COURT. lant has received the transcript, or that he has not directed a tran- script to be made out ; or, if he has given such direction, that he has not tendered the fees therefor. V. When the a})pellant fails to file his transcript of the record within the time prescribed, the respondent, instead of moving for a dismissal, may himself file the transcript and require the appellant to file his statement of points. In default whereof, on the part of the ap- pellant, the court will, (if there be no error,) affirm the judgment of the court below. If the appellant file his statement, the cause shall proceed as in other cases. VI. All transcripts of records hereafter sent to this court shall be on paper of uniform size, according to a sample to be furnished by the clerk of the court, with a blank margin, one and a half inches Avide, at the top, bottom, and sides of each page. YII. The pages of the transcript shall be numbered, and shall be written only upon one side of the leaves. VIII. Each transcript shall be prefaced with an alphabetical in- dex to its contents, specifying the page of each separate paper, order, or proceeding, and of the testimony of each witness, and shall have at least one blank or fly-sheet cover. IX. Marginal notes of each separate paper, order or proceeding, and of the testimony of each witness, shall be made throughout the transcript. X. The transcript shall be fastened together on the left side of the pages, by ribbon or tape, so that the same may be secured and every part conveniently read. XL The transcript shall be written in a fair, legible hand, and each paper or order shall be separately stated. XII. Xo record which fails to conform to these rules shall be re- ceived, or docketed, by the clerk of this court. XIII. For the purpose of correctmg any error or defect in the RULES OF THE SUPREME COURT. 281 transcript from the court below, either party may suggest the same, in writing, to this court, and, u])on good cause shown, obtain an order that the proper clerk certify to this court the whole or part of the rec- ord, as may be required. If the attorney of the adverse party be ab- sent, or the fact of the alleged error be disputed, the suggestion must be accompanied by an affidavit .proving the existence of the error al- leged. XIV. Upon the death, or other disability of a party, pending an appeal, his representative shall be substituted in the suit by sugges- tion, in writing, to the court, on the part of such representative, or of any party on the record. Upon the entry of such suggestion, an order of substitution will be made, and the cause shall proceed as in other cases. XV. The calendar of each term shall contain only those causes in which the transcript shall have been filed five days before the com- mencement of the term, except by the order of the court or by the written consent of the parties. XVI. To entitle the appellant to bring the cause to a hearing at any term, the statement of his points and authorities shall be filed five days before the hearing ; and unless so filed, the appeal will be dis- missed. Additional points may be filed at any time, by leave of the court or the consent of the parties. The argument before the court shall be confined to the points on file. XVII. The clerk shall set down not more than ten causes for one day, aud no cause shall be set for Fridays and Saturdays. All causes from the same judicial district shall be set together, and in the order of the number of the district, commencing with the first, except the calendar shall end with the Sacramento causes, preceded by those from San Francisco. XVIII. Causes in which the people of the state are a party, and a citizen is confined in prison, may be called, on motion of the attorney general, at any time, upon due notice to the opposite party ; and for this purpose, all such causes shall have precedence on the calendar. XIX. Upon a suggestion in writing, to the court, and upon cause 282 RULES OF THE SUPREME COURT. shown, that an appeal has been taken merely for delay, the court may order the same to a hearing without reference to its place upon the calendar. XX. Before the argument, both the appellant and respondent shall furnish to each other and to each of the justices of this court, a copy of his points and authorities ; or either party may file one copy thereof with the clerk, who shall cause to be made the copies required for the use of the court, and may tax the same in his bill of costs. XXI. No more than two counsel on a side will be heard upon the argument, except in peculiar and important cases ; but each defendant who has appeared separately in the court below, may be heard through his own counsel. The counsel for the appellant shall be entitled to open and close the argument. Each counsel will be allowed one hour. XXII. All opinions delivered by the court shall be recorded by the clerk, who shall, after recording the same, deUver the originals, with a transcript of the judgment, order or decree of the court there- on, to the reporter of this court. The clerk to be allowed compensa- tion per folio as may be fixed by la\v for copies of the record, to be taxed as costs in such case. XXIII. All motions for a re-hearing shall be upon petition, in writing, presented within ten days after any final judgment is ren- dered, or order made by the court ; and no argument will be heard thereon. No mandate to the court below shall be issued until the ex- piration of the ten days herein provided, unless upon good cause shown, and upon notice to the other party. XXIV. On the reversal of a judgment, a certified copy of the opinion in the case shall be transmitted to the court below. XXV. No paper shall be taken from the supreme court room, or clerk's office, except by order of the court, or of one of the judges. XXVI. A •\\Tit of error shall be issued by the clerk, upon the fil- ing of an affidavit, by or on the part of the applicant, showing that there is a judgment to be reviewed, describing it, and also that there is a proper case for the issuing of the writ. RULES OF THE SUPREME COURT. 283 XXVn. Upon filing the writ and a sufficient bond -with the clerk of the court below, and upon givuig notice of the same, in writing, to the opposite party, or his attorney, and to the shei'iff, the writ shall operate as a supersedeas. The bond shall be substantially the same as required in cases on appeal. XXVIII. The writ of error shall be returnable, at the utmost, within thirty days. XXIX. The rules and practice of this court respecting appeals, shall apply, so far as the same may be applicable, to proceedings un- der a writ of error. XXX. The writ shall not be allowed, after the lapse of one year from the date of the judgment, order, or decree, which is sought to be reviewed. XXXI. When causes are placed upon the calendar, parties shall be primarily liable for costs as follows : 1st. If by the appellant, he shall first be liable ; 2d. If by the respondent, or by consent, then both parties. In no civil case shall the clerk be required to remit the final papers until his costs are paid. It is ordered that the foregoing be adopted, and all preceding rules abolished. I, Charles S. Fairfax, clerk of the supreme court of the state of California, do certify the foregoing to be a true copy of the rules of the supreme court of the state of California, adopted December 2d, 1857, and in force on and after January 3d, 1858. CHARLES S. FAIRFAX, Clerk. RULE BY THE CLEEK. In future, no transcript of record from a lower court will be filed in the supreme court unless accompanied by thirty dollars in cash. C. S. F. 'f INDEX. JiL '' J 2i^'' ^/f^ THESE NUMBERS KEFER TO SECTIONS. A. ABATEMENT— will not lie for death or disability, 16 plea of, in attachment, 138 of nuisance or waste, 249-252 Absence — from trial waives a jury, 179 of evidence at trial, 158 Absentee — deposition of, as witness, 428-431 see KON-RESIDENT. Account— witness, on assignment of, 4 items of. need not be in complaint, 56 copy of items of, may be demanded. 56 a mrther, may be ordered, 56 when this, shall take effect, 649,667 f- Actions, Civil, form of, and the parties thereto, 1-17 there shall be but one form of, 1 the parties to, 2 trial of question of fact not in issue, 3 shall be prosecuted by party in interest. 4 witness on assignment of chose in ac- tion, 4 on assignment of notes and bills, 5 between Imsband and wife, 7 all having an interest in, may be plain- tiffs, 12 when persons severally liable, shall be joined in, 15 when to abate. 16 to be continued b.y successor in interest, 16 place of trial of, 18-21 when to be tried in the county, 18,19 when place of trial to be changed, 21 how commenced. 22-35 court tax to be paid in, 509 affecting title to real property, 27 against two or more defendants, 32,368 complaint to contain title of, 39 demurrer to another action between same parties. 40 Actions, Civil, {Continued.) upon written instruments, 53 for recovery of real property, 58 lor libel or slander, 62 for claims of delivery of personal property, 99-110 attachment upon contracts in, 120 may be dismissed, 148 for foreclosure of mortgage, 246-248 for nuisance, waste or trespass, 249-253 to determine conflicting claims to real property, 254-263 for the partition of real property, 264-309 for usurpation of office, 310 against steamers, vessels and boats, 317-332 joint debtors, 368-373 several on one bond do not carry costs but in one, 496 successive, may be brought, 525 may be consolidated, 526 may be brought to determine adverse claims. 527 to compel principal to pay security, 527 (Injustices'' Courts.) to be brought in township of the de- fendant, how commenced, see Cause of Action. Adjournment — during absence of juiy, {In Justices' Courts.) of a cause, undertaking on, see Continuance. Administrator — may sue by himself, appeal bond in suit by, when to pay costs, Adverse Party — is defendant, respondent, intervenor, when may be a witness, testimony introduced to rebwt^ 535 538 170, 580-585 585 6 353 507 335 659 393 419 286 INDEX [these kumbers Affidavits — before whom taken in the state, in anotlier state, in a foreign country, certificate ot clerk to, of service of summons, of publication of sinir of " — arrest .^^ of sureties onT!^%st bond, copy of, to be given defendant, of justification of bail, on discharge of arrest, of judgment debtor, on attachment. on bond to release attachment, to discharge attachment, for contemi)t, against steamer, boat or vessel, ol sureties on attachment bond against steamers, 322 on injunction, 112,113 to dissolve, 118 in replevin. 100 of claims of third persons, 109 of sureties on indemnity bond, to postpone trial for absent witness, on objection to referee, on motion for new trial, on judgment after five years. on redemption of property, of property due judgment debtor on usurpation of office, of mariners" claims. of sureties on appeal bond. of confession of judgment, in submitting controversy, of arbitrators, of concealment of witness, for prisonei- as a witness, for exiiniiniitiou of witness, to read ilciin^ition on trial, on application to perpetuate testimo- 438 440 441 457 481 510 513 531 rule xxvi 109 158 186 194,195 214 234 241 311 329 355 375 377 385 405 413 429 430 affidavit of service of. to be a prima facie evidence, on ai)plication for certiorari, of contemi)t, of costs and disbursements, of sureties on bond for costs, defect in, for writ of error. {In Justirfs' Courts.) of absent defendants, on arrest, on attiichment, plcvin, luw trial, '"i\TlUN— ' ATU. 643 545 552 557 623 446.647 f infant for appointment of guard- inn. 10, i.ii:n ATION — of real property cannot prejudice ac- tion. ALLE(4ATI()NS— pleadings are constituted of formal, answer to contain denial of, when taken as true, what are material, to Ije literally construed, are issues of fact, {In Jiislicrs' Courts.) variation in. shall be disregarded. 542 203 579 Alteratiox— of a document in evidence to be ac- counted for, 448 Amendment — to complaint, 43 after demurrer filed, 67 to j)]eadings, 68 to name of (lefeudants, 69 {In Justin. s' Courts.) shall be ordered, 578 may be allowed, 680 Answe'u— to be one of the pleadings, 38 may be to part of the complaint, 42 may be filed with demurrer. 42 when demurrer is overruled, 67 objection to complaint, by. 44 what to contain when verified, 46 to be verified or not. 51,52 when embracing new matter, 50 sham and irrelevant to be stricken out, 50 to complaint on written instrument, 53 to allegations in verified complaint, 65 to actions of libel or slander, 63 • demurrer to, 38,50,67 time may l)e enlarged for filing, 68 replevin'may issue before filing, 99 injunction may issue after filing, 114 judgment upon failure to, 150 issue of law arising upon. 152 on demurrer to, 152 in partition suits, 270 of joint debtors, 371 of witness on examination, 40S I of party refusing to testify , to be strick- I en oiit, 420 to writ of mandate, 471.476 1 to eontemi)t, 487 I OH intervention, 661 I {In Jiisticf.'i' Courts.) to summons, 535 what to contain, 570,574 to deny signature to written instru- mentj 577 {In Recorders' Courts.) 638 Appearance — of defendant, waives summons, 22 authorizes commission. 428,432 what constitutes an, by an attorney, 523 {In Justicts' Courts.) of parties may waive jurisdiction, 537 Appeal — from judgment against steamers, 332 in ^1 Ufni/, what is an, 433 who mav, 335 from wliat to lie, 336 time allowed to, 336 filing notice of, 337 court tax on, 609 what statement on, repellate court on, 345 damages for ilelav on. 345 appellant to furnisli papers on. 34t> when may be dismis,>:ed, 346 from siibinission of controversy, 379 from award on arliitration, 388 from writ of certiorari. 465 opinion on to be in writing, 657 filing of transcript on, rules iii to xiii BEFER TO SECTIONS.] INDEX, 287 Appeal— ( Continued.) to Supreme from District Courts, wlion iiiiiy be taken, 347 uiidertakiii-; lilotl on, 348..%! sureties on undertakings, 355 justification of, 36tj stay of proceedings on, 349 certifying of judgment on, 358 how brouglit to liearing, 361 rule xvi. to Suptone from County Court, when may be taken. 359 nndertaking on, 3(50 how brougiit to a liearing, 3t;i appellant to furnish papers, 362 to District from Probate Court, in what cases to lie, 363 when to be taken, 364 how brought to a hearing, 365 to County from Justices' and Recorders'' Courts, when to be tried anew, 366 power of appellate court, 367 rendering of judgment on, 367 statement and proceedings on, 624-629,640 Appellant — is the part}' appealing, 335 , to furnish papers to appellate court, 346..362 to file statement of points, rule xvii. Arbitration — title to real property not subject to, 380 who may submit to, 380 submission to be in writing, 381 stipulation for judgment on, 382 awards shall be ma'de on, 382 revocation of submission to, 382 damages for, 389 power of arbitrators, 383 award to be in writing, 385 appeal from, 388 to constitute judgment, 385 order to vacate, 386 modification or correction, 387 re-hearing of trial ou, 386 Arbitrators — power of, 383 meetings of, 384 award to be signed by, 385 to be sworn, 384 re-hearing before, 386 when three, all shall meet, 529 Argument— case may be reserved for, 198 of causes in supreme court, rule xxi Arrest— action for malicious, with what join- ed, 64 in civil cases, 72-98 of defendant, 73 judge to issue order, 74 afiidavit for order, 75 undertaking on, 76 affidavit of sureties on, 76 filing of affidavit and bond, 75,76 when order to issue and be returned, 77 sherirt" to serve order, 77 order to be given to sheriff and copy to defendant, 78 discharge of defendant from, on bail or deposit, 80,91 bail on, how given, 81 may be reduced, 97,98 bail may arrest or surrender defend- ant, 82,83 exoneration of bail, 83,85 liability of bail, 84 deposit on discharge to be returned, 93 when defendant escapes from, 95 .^.iHk. Arrest, ( Continued.) liability of sheriff on escape from, may be vacated. of judgment debtor, on usuri)ation of office, of absent witness, when witness is privileged from, on contempt, ( In Justices'dhurts.) of def'eM(Unt, •■«B^ affidavit rment on indemnity, to sberiflf, 645 see L' x d ei;t a k i x«. BOUXDARIKS- see Mete.s and BouxDS, 58,258 c. 156 rule XV. 40 «'alexdar — of causes in court. in supreme court, t'AP.\C'ITY — demurrer to want of, to sue ('AU8E OK .\<'TIi>N — demurrer to imjiroper joinder of, 40 to want sufficient facts in, 40 constituting; a set-olf. 47 seiiarnte defenses to refer to, 49 when several nniy be joined, (54 limitation to foreign, 532 rERTIKICATE— of sale under execution, 239 Cektiokari — writ of, 466-465 how denoiiiinati'd, 455 bow >:r!inted, 466,653 application to be made on aflidavit, 467 f'ERTIoRARI. ( Continufii.) notice may be jriven to adverse party, 457 may issue to show cause, 457 to whom directed, 458 what to reijuire. 459 stay of proceedings by, 460 how to be served, ' 461 how far writ shall extend, 462 when return is defective, 463 transmission of judgment to inferior court, 4<>i what constitutes judgment roll upon. 465 ajipeal to supreme court from, 465 costs allowed as on appeal, 508 C'HALLKXOE — to jurors. 161 causes of. 162 to be tried by the court, 163 (In Justices' Courts.) to jurors, 690 Chambers of judges of supreme court, p. 11 of district court, p. 15 Charge — to the jury, 165,168 Child— see IxPAXT. Chose in Action — see Thixo in Action. 4^ Civil Action— see Action. 1-17 Claims — for personal property. 64 for delivery of, 99-110 against trustee, ' 64 by third person in replevin, 109 on attachment, 131 on execution, 218 lor an office or franchise, 310-316 of mariner or seaman, 329 how allowed and contested, 329 action to determine adverse. 527 254-263 264-309 656-661 conflicting to real property, for partition of real property, (7)1 Just ire. t' Courts.) for delivery of personal property, of third persons for personal property, 565 see 1*roi'erty, Heal and Tersoxal; Trustee, Bevlevix, Cooxtek Claims. ('LERrn'MAX — when to be a witness, 397 Clerk — to endorse complaint, 23 to certifv copv of complaint, 28 to file af^davit and bond in arrest, 75,76 to take down exceptions, 189 of supreme court to send remittitur, 3,58 to keep register of action, 528 office of county, 644 to take down testimony in writing, 663 Coc.xoviT — of action. 390 Commission-— to take testimony, 428-444 (In Ju.tt ires' Courts.) justices may issue, 620 see AViTXESe COMl'LAIXT — filing of to commence action, 22 endorsement upon by clerk, 23 to be answered, 24 time to answer, 26 copy to be .served witli summons, 28 on one defendant. 28 to be one of the pleadings, 38 what to contain, 39 verification of, 66 demurrer to. 40 REFER TO SECTIOKS.] INDEX. 289 Complaint, ( ('cmiiiiin'r!.) objections to. 1o bo in doniuricr, 41 how served when anieiuled, 43 answer to, wlien verified, 46 upon written instrument, 53 for recovery of real property. 58 on lite! or slander. 62 answer to when demurrer is over- ruled. 67 on injunction. 112 verification of, 113 for partition of real property, 265,267,273. 275 on usurpation of otiice, 310 ajrainst steamers and boats, 319 new, need not be filed against joint debtors, 369 of narties refusing to testify stricken out. 420 on intervention, 661 {In Justices^ Courts) what to contain, 570,573 on written instrument, 577 (7/! Recorders' Courts.) 636 Com promi.se — otter to, 390 (In Juslirfs' Courts,) ofler to, 596 CONC'EALMEKT— of defendant. 80 of property in replevin. 107 {In Justices' Courts.) of defendant, 543 of property from ofllcer, 563 COXDITIOXS— performance of, how jileaded, 60 CoxFESSio" OP Judgment, 374-376 {In Justices' Courts.) 536 Consolidation — of actions, 526 Constable — shall not act as attorney, 534 to serve summons, 542 power of after term has elapsed. 615 Construction— of allegations to be liberal, 70 of words in this act, 647 Contempt — of judgment debtor, 245 of third persons under an execu- tion, 245 lor disobeying a subpoena, 410 ■what is deemed a, 480 when committed in or out of court, 481,482 court to direct as to bail, 483 sheriff to arrest on warrant for, 483 bail on arrest for, 485 return of warrant, 486 case to be heard on, 487 court to decide on, 488 is also indictable. 490 non-appearance after ball, 491 person committing, when to be con- fined, 492 judgment or order on, becomes final, 493 {In Justices' Courts.) justice may punisli lor, 616 Continuance — of a cause for an absent witness, 158 for unreturned commission, 436 examination of witness on, 664 {In Justices' Courts.) of a cause, 580-685 Contract — cause of action on. 64 attachment upon, 121 Control — see Jurisdiction, 35 CONTUO V KR P Y — court to determine. 17 submission of without action, 377 affidavit upon, 377 judgment to be entered on, 378 to be enforced, 379 appeal may be bad on, 379 submission of, to arbitration. 380 Conversion— arrests on. 73 (7/1 Justices' Courts.) arrest on, 541 Convicts — not to be witnesses, 394 to answer to previous conviction, 408 Copartners may be witnesses for themselves, 423 when summoned in firm's name, 656 Corporation — Iiow summoned, 29 how to verify pleadings, 55 how to lie enjoined, 117 rights and shares of, attached. 124.125 may be sued by judgment creditor, 244 (7/! Justices' Courts.) how summoned. 542 Correction — of a verdict, 172 of an award, 387 Costs— when plaintiffs shall not recover,256,390.498 in partition of real property, 308 on usurpation of otiice, 316 allowed on writ of mandate. 477 prevailing party allowed, 494 when allowed to plaintiff, 495 when allowed in only one action, 496 defendant to recover', 497 when allowed or not, 498 several defendants may recover, 499 when in discretion of court on appeal, 500 of referees, on postponement of trial, on tender before trial, against administrator or trustee, on certiorari, or review, court tax, for judge's salary, memorandum bill of, judgment to include, non-resident to give bond for when execution maj' issue for, {In .histices' Courts.) to be entered with judgment, allowed to prevailing party, justice may require deposit, CoiJNTER Claim — see Set-off, {In Justices' Courts.) may be pleaded, County — when actions to be tried in, to be stated in summons. in complaint. County Court — act organizing, terms of the, jurisdiction of, actions, how commenced in, appeal to, ap])eal from, see Appeal, Judge. Court — mav determine controversies, actions how commenced in, to be stated in summons, name of to be in complaint. may impose terms on amendment, may order items of account. to take judicial notice of statutes, 504 505 506 507 508 509 510 511 512-514 665 598 631 634 47 576 18-21 24 39 p. 16 p. 8 p. 44 22 359-365 366,624-629 200 INDEX. [these kumbers Courts, (Continued.) may allow answer after demurrer, 67 may allow amendments, 68 may tlisrefjard errors and defects, 71 may grant injunction. 111 to rciiuire undertaking on injunction, 115 may order hearinf; 1'or injunction, 116 only to enjoin corporations. 117 may appoint receivers, 143 to try issues of law, l.>4 charge of jury by, Itio may adjourn in absence of jury. 170 may direct sealed verdict, 170 may correct verdict, 172 award, 387 to try issue of fact, 179 may order reference, 183,184 may order insiK-ction of documents. 446 may punish for contempts, 481.482 tax to be paid to judge. 509 sec f'OCXTY. .SUPKEME, DISTRICT. PRO- BATE. JusTic'KS', Mayors' and Ke- coRDERS" Courts, Judge. Courts of Justice— / in this State, p. 9 Courts of Sessions — organic act. p. 18 Credits and Debts— see Debts, 125.130.240 Custom may be proved in mining claims, 621 D. Damages — com]>Iaiut to contain amount demand- ed, 39 action for, to real or personal prop- erty, M excessive, a ground for new trial, 193 treble, for forcible entry and detain 253 257 314 410 477 , 29 when set-off by improvements, against usurpation of otHce, for absence by witness, allowed on writ of mandate. Days. Judicial. Death— action for. of ward or child, 11 of father, mother may sue, 11 will not cause abatement, 16 not to prejudice set-o(f, 48 of (li'fenilant, exonerates bail, 85 judgnu'iit ui>on verdict after, 202 execution upon judgment after. 215 deposition of witness may be read after, 4.30,442 substitution in appellate court after, rule xiv. Debtor— action against joint. 368-373 examination of judgment. 238 of persons indebted to j\idginent, 241 {In Jiistires' Courts.) examination of judgment. 602 see .Ioint Debtors. Decisions— in sn])remo court to be written, 657 Debts and Credits — how attached, 125 how levied upon, 240 sherilf to receii)t for, 130,240 Default— judgment by, may be opened, 68 to be threatened in sum- n)ons, 24 when to be entered. 150 I Default, ( Continufd.) judgment by, relief not to exceed de- mand, 147 writ of mandate not to issue by, 470 (In JiiMites' Courts.) judgment by, 586,592 Defect- of jiarties. a ground of demurrer. 40 in pleadings, when deemed waived, 45 in Items of account, 5*3 when to be disregarded, 71 Defendant- Is the adverse party, 2 who may be made, 13.658 who shall be joined as, 14 one or more, may defend, 14 to be summoned. 24 may waive summons. 22,.3o how served when more than one, 28 how to be summoned, 29 attorney appointed for absent, 31 non-resident, absent or concealed, 30 when there are two or more. 32 several liability against, 32 pleadings of. 38 may demur to complaint. 40 to be served with amended complaint, 43 answer to complaint by. 46 to deny signature under oath, 53 may be arrested, 73 may be discharged from arrest, 80 may surrender himself on arrest, 95 may move to vacate arrest, 97 to reduce bail, 97 may except to replevin bond, 103 may bond property replevied, 104 attached, 123.136 judgment for, on attachment. 135 iiiav move to discharge attachment, 148 ju7(>(,?' Courts.) may be ])leaded, 574 seeANSWER. Delinquent — bidder at execution sale. 224.225 Delivery— of i)roperty purchased at execution saV', 227.228 Demand— witness on assignment of unliquidated. 4 Demurrer- to complaint and answer to be plead- ings, as causes of. to complaint. 40 sliall specifv grounds. 41 when may he disregarded. 41 may be to whole complaint, 42 may be tiled with answer, 42 to answer and defenses, 50 REFER TO SECTIOKS.] INDEX. 291 Demurrer, (ron(i«"»'rf.) to iiisulliciency of new matter, 50 wlieu overruled, answer may be filed, 67 to answer, 38,50,67 time may be enlarged for tiling, 68 (7/1 J)isticts' Courts.) to pleadings, "'° Denial — of allegations in complaint, 46 of genuineness of signature in written instrument, 52,54 Deposit— , ^^ „. defendant arrested may make, bO.yi may be returned on giving bail, 93,94 in court, }^^ of surplus in court on foreclosure. Mi in court on appeal, 348,356 on interpleading, 658 {In Justices'' Courts.) for costs, may be required by jus- tice, 634 Depositions— 428-442 (In .lu.^tices' Courts.) may be issued by justice, 620 see Witness. Deputy— sheriff to serve summons, 28 constable may be appointed. 613 Detainer— damages for unlawful, trebled, 253 DlSAr,ILITY — of a party will not cause abate- ment, 16 Disbursements— 494-514 see Costs, Fees. Discontinuance — see Dismissal. Discovery — action to obtain, 417 Dismissal — of an action, 148,157,514 court may enter, 148 of appeal, rule iv, 346,365 {III Justicf.'i'' Courts.) of an action, 586,591 Disobedience— of order of referee, 275 of subpoena, 409 of writ of mandate, 479,480 of a lawful writ, 480 {In Justices' Courts.) of a lawful writ, 616 Disqualifications — of judges, p. 28 ot jurors, 162 of referee, 185 Districts — judicial, judges of, p. 7 terms of courts in, p. 8 in this state, p. 12 Dlstrict Courts — judges of, p. 7 terms of, p. 8 organic act, p. 12 jurisdiction of, _ p. 14 commencement of civil actions in, 22 appeals from, 347-358 judges of, bow paid, 509 may order arrest of usurper, 311 testimony of prisoner, 412 Docket — judgment, 204-207 copy of, on redemption, requisite, 234 {In Justices'' Courts.) judgment, what to contain, 604 Documents — 446-454,656 SOP Writings. Duces Tecum — subpoeua requiring, 402 E. Embezzlement — arrest on, 73 {In Justices'' Courts.) arrest on. • 544 Entry — « damages for unlawful, trebled, 253 Errors— when to be disregarded, 71 of law, ground for new trial, 193 in transcript on appeal, rule xiii. writ of, to supreme court, rules xxvi to xxx. Evidence — postponement of trial on absence of 158 new trial on newly discovered, 193 insutficient, 193 of written documents and judg- ments, 446-453 {Injustices^ Courts.) of written instrument on trial, 576 adjournment for absence of, 684 Exceptions — to report of referee, 187 what is an, 188 point of, to be stated, 189 to be noted by judge, 189 no particular form required, 190 to be brief, 190 when decision not immediately given, 191 to sufficiency of sureties, 103,.355 {In Justices'' Courts.) to sufficiency of sureties, 560 Excess- on foreclosure judgment, to be paid over, 247 judgment for defendant on, of set-off, 199 {In Justices'' Courts.) of jurisdiction to be remitted, 595 Execution — for residue in attachment, 133 when to issue, 209 how to issue, 210 joint and several, 211 when returnable, 212 to enforce judgment, 213 after five years, 214.600 after death, 215 may be issued to any county, 216 levy under, 217 claim by third person under, 218 sheriff's jury to determine claim, 218 property exempt from, 219 shall levy on sufficient property, 220 notice of sale under, 221 selling without notice, 222 property, how sold under, 223 when purchaser refuses to pay bid, 224 against delinquent bidder, 225 officer not liable for delinquent's bid, 226 deliverv of personal property pur- chased under, 227,228 redemption of real property under, 229 certificate of sale of real property un- der, 229 who may redeem, 230 how redemptiou effected, 231 redemption from redemptioner, 232 when sale absolute, 232 payment on redemption, to whom made, 233 papers to be served by redemptioner, 234 proceedings supplementary to, 238 examination of judgment debtor un- der, 2.39 levy on credits of judgment debtor, 241 injunction to restrain waste before con- veyance uudw, 235 292 INDEX. [THESE ^•l•MBERS Execution, (Continued.) tiamaj,'1 during foreclosure, 261 appeal from order granting or dissolv- ing, 336.347 Injuries — joining of actions for, to character, person, or i)roi)erty. _ 64 arrest may be had for, 73,544 Insanity- how insane person summoned. 29 an objection to wituess, 329 {In Juslirr.s^ Courts.) how insane persons guminoned 542 Instructions- to jury before retiring, 165 after retiring, 168 Instruments— when written, used as evidence, 446-454 see Writings. Intkrpi.ea— when allowed, 658 KEFER TO SECTIONS.] INDEX 293 659-662 Ikteiipuetek — to be sworn, lNTEUm>«ATORIES — see Witness. Intervextion — when allowed, Irregularity — of proceeclinjj.s a jiround for new trial, 193 eviction of purchaser through, 237 Irrelevakcy — to be stricken out, Issues— of fact and law, 57 151 date of. to regulate cause on calendar, 156 157 271 373 472 153 153 how brou^iht to trial, in partition suits, tried against joint debtors, tried on application for mandamus, of fact on allegation in complaint, on new matter in answer, to be tried by jury, referee or court, ■ 155,182 trial of, by jury may be waiv- ed, 179 trial of, by the court, 180 of law, on demurrer or answer, 152 tried by the court or ref- eree, 154,181,182 to be first disposed of, 155 Items— of account need not be set forth in pleadings, 56 ' J. Joinder — of several causes of action, when al- lowed, 64 Joint Debtors — summons against, 32 execution against, 211 summoned to show cause, 368,370,371 requirement of summons against. 369 not necessary to tile new compiaiut against, 369 if defendant deny judgment, 372 issues against, to be tried, 373 judgment to be for balance due, 373 {In Justices'' Courts.) judgments against, 594 Judge — when disqualified, p. 28 when disqualified may change place of trial, 21 may order items of account, 56 to issue order of arrest, 74 to note exceptions, 189 to examine judgment debtor, 239 —salary to be paid from court tax, 509 may order arrest of usurper, 311 may order testimony of prisoner, 412 see Court. Judgment — alias, when recited in pleadings, 59 relief from, through mistake or sur- prise, 68 defendant may be arrested before, 77 may be arrested after, 239 satisfaction of, on attachment, 132 is the final determination of rights of parties, 144 may be entered in term or vacation, 144 may be for or against one or more, 145,146 relief consistent in the case, may be f ranted by, 147 en to be rendered on the merits, 149 by default, 150 upon account stated, 150 Jitdoment, (Continupii.) by default, re(|uiring proof, 150 on i)ublicution of summons, 150 when to be entered, 197 for defendant for excess of set-off, 199 for possession of personal property. 200 book, 201,376,378 not to be a lien in case of death, 202 roll, 203 docket and lien, 204-207 satisfaction of, 208 execution upon, 209 to be enforeiMl by execution, 213 when ontilied copy to be served, 213 execution upon, after five years, 214 after death. 215 against delinquent bidders, 225 creditors may sue for debts due, 244 when right of plaintilf to real prop- erty has terminated, 256 on usurpation of office, for defendant, 312 against defendant, 316 against steamers or boats, 328 may be reviewed on appeal, 333,347,359,366 against one or more of several per- sons, 368 denial of, by one, 372 to be for surplus, 378 by confession, 374-376 how entered, 374 statement in writing of, 375 statement to be filed, 376 on submission of controversy, 377 to be entered in judgment book, 378 may be enforced, 379 on award of arbitrators, 382.385 upon offer to compromise, 390 on writ of certiorari, 499 on writ of mandate, 477,464 to include costs, 511 on indemnity bond to sheriff, 645 (Injustices' Courts.) 591-595 by confession, 536 by default, 586 to be entered up, 594 may be certified to county clerk, 599 see DISMISSAL, Kon-Suit, Default, Execution. Judicial Days — p. 29 Jurisdiction— of court acquired by service of sum- mons, 35 demurrer to want of, 40 objection to, never waived, 45 in alias judgment, gS" [In .Justices^ Courts.) , - of justice, 535 how waived by appearance, 537 Jurors — how summoned, 159 number of, 159 oath of, 160 challenge to, 161 unqualified by statute, 162 for consanguinity or af- finity, 162 for immediate connec- tion, 162 for serving on previous trial, for interest, for opinion, for enmity or bias. illness of verdict of, when to be a witness, (In Justices'' Courts.) who shall be, challenge to. 162 162 162 162 164 174 400 587 590 294 INDEX. [TnSSE MUVBESS Jury— to try questions of fact not iu issue, 3 of slicriff in attaclinieitt, 131 ou fxc'cution, 218 to try issues of tact. 155 formation and number of, 159 oath of, 160 chalienjie to the, 161 charge to the, 165,168 deliberation of. 166,167 discharf^e of, 169 by adjournment of term, 170 scaled verdict of, 170 return of, after verdict, 171 pollin;.' of, 171 correction of verdict of, 172 record of verdict of. 173 to lind general or special verdict, 174.175 trial by, may be waived, 179 (//I Justin s' Courts-) trial by. 587 empaniiclinp of, 688 (In RiTDrilers^ Courts.) trial by, 639 Justice of the Peace — act orfianizinj:, p. 23 to try suits against delinquent bidders, 224 when a witness, 582 in arrest case, ' 545 to have power over predecessor's docket. 608 successor in office of, 610 disability or sickness of, 612 to receive and pay out all moneys, 633 Justices" Coukts— " orfianic act, p. 23 jurisdiction of, p. 23 of proceedings in civil cases in, 633-635 action to be broujiht in township, 535 how commenced, 538 adjournment of cause, 549,580,585 undertakinjf on, 585 affidavit of absent defendant, 543 on arrest, 545 on iittachmeut, 652 on claim of personal prop- ertv, 557 for ne%v trial. 623 aTOendments nniy be allowed, 578.680 answer to summons, 535 wlnit to contain, 670.574 to deny sifinature to instru- ment, 577 appeal to county court, 366,624-629 ni)j)earance of parties may waive juris- diction, 637 arrest of defendant, 644 nllidavit on, 545 underfakinjr and bail on, 545,550 adjournment of cause on, 549.582 jucl;r"ieiit on civil, 694,597 judfrmciit for contempt, 617 attachnieiit may be issued, 551 affidavit on, 552 undertaking on, 653 undertakiiij; to release, 554 attorney in. who may be. 534 bail of "arrested (l blank not to be left in papers, 611 challeniie to jury, 59^' claim for delivery of personal prop- | erty, 556 ' bv tlilril i)erson in, 5t)5 ! affidavit ou, 557 undertaking on, .W iindertakitig to release, .'>6l commissions may be issued in, l>2it complaint, what to contain. 570.573 on written instrument, 577 Justices' Courts, (Continued.) compromise, ofl'er to. 596 concealment of property from officer, 563 confession of judgment, 536 constable not to act as attorney, 634 to serve summons, 542 ^ power of, after term has ex- pired, 615 may appoint deputies 613 contempt may be punished by, 616 continuance of a cause. 580-585 corjjorations, how summoned, 542 costs to be entered with judgment, 598 allowed to pre\-ailing party, 631 deposit may be reciufred for, 634 counter claim may be pleaded, 576 custom may be proved iu mining claims. 621 debtor, examination of judgment, 002 default, judgment by, 686.592 I'.eieiidant. to be summoned, 539 how to be served, 542 may be arrested. 544 maV demand immediate trial, 549 how discharged Irom arrest, 549 may give bail, 550 defenses may be i)leaded, 674 demurrer topleadings, 578 deposit for cost may be ref|uired, 634 depositions may be authorized. 620 deputy constable may be appointed, 613 dismi.-isal of action, 686,591 docket, what to be contained in. 604 evidence of written instrument on trial, 577 adjournment for absence of, 5S4 exception to sureties on replevin bond. .OtiO excess of jurisdiction to be remitted, 595 execution may be issued, 600 to whom directed, 601 how enforced, 6f>2 not to have blank left. Oil {guardian for infant to be appointed by. 539 infant to have guardian appointed, ' 5.39 how summoned. 542 insane person, how summoned, 542 joint defendant, judgment against, 594 judgment in. 591.5!:t9 bv confession, 536 by default, 586 to be entered up, 5il4 may be certitied to county clerk, 6!t9 jurisdiction of, 535 how waived, 537 jurors, challenge to, 590 jury, trial by. 6!^7 empanneling of, 588 justice, wlien a witness, 5S2 in arrest case, 545 to have power over predecessor's docket. 608 disability or sickness of, 612 to receive and pay out all mon- eys, 633 justitication of sureties on replevin bond, 660.567 on release of, 562 lien created by judgments, 59it mining clainiii, )>leading to be verified. 571 proof in actions for. (CI suit for determination of, 651 proceeds ot'. to be collected, 651 receiver to take charge of. <>51 nanu- of defendant, how nn>ntioned, 540 new trial when to be granted. 622 affidavit and notice on, (>23 objection to pleadings, 578 otl'er to compromise, 696 REFER TO SECTIONS.] INDEX 295 JusTir-EP" Courts, (Cnntinued.) partii'S may appear in pi-rsou to plead, 534 ])lace of trial, clianjic ol', 582 plaintid", how to ooiiinieiicc action, 538 may arrest (li'l'i'iidant, 545 to 1)(' notilied of arrest, 547 name of, to be entered on docket, . 606 pleadings in, 570 when to be verified, 671 when may he oral, 572 property, claim for delivery of per- sonal, 556 title to real, not to be tried in, 581 pnblication of snmmon.s, 543 real property, title not to be tried in, 581 receiver to oe appointed for mining claims, 651 replevin suits in. 556 attidavit and bond in, 657,559 release bond on, 561 justilication of sureties in, 560,562 return of summons, 541 San Francisco, jurisdiction in county of. 535 set-otr may be pleaded, 676 sheritr may serve summons, 542 attachment, 554 subpoena may be issued in, 619 successor of justice in oftice, 610 summons may be waived by appear- ance, 537 how issued, 538 how addressed and what to con- tain, 540 to be subscribed by justice, 540 when returnable, 541 by whom to be served, 542 against non-resident, 543 publication of, 543 not to have blank left in, 611 sureties on replevin bond, 559 on replevin release bond, 561 on arrest bond, 545 on attachment bond, 553 tender in court, 596 title to real property not to be tried in, 581 third person, claim by, in replevin, 565 time of return of summons, 541 township, persons held to answer in, 535 transfer of arrest case, 546 for cause, 582 undertaking on arrest, 545 on discharge from arrest, 550 on attachment, 553 on release of attachment, 554 on replevin, 559 on release in replevin, 561 on indemnity in replevin, 565 on adjournment, 585 variance at trial between allegata et probata, 579 venue, change of, 582 witness, when justice is, 582 adjournment for absence of, 584 woman not to be arrested in, 544 Justification — of sureties. 103,105,355,650 {In Justicts' Courts.) on replevin bond and release, 560,562,565 see SuKETiES. L. Law — separate finding of conclusions of, 180 new trial to be granted for errors of, 193 issues of, 151 see Issues. Leasehold— when subject to redemption. Lew— 229 209-234 see Execution, LlAUILITV — several, of defendants how jirosecuted, 32 ui)on obligations, 15 of steamers, vessels and boats, 317 confession of judgment to contain statement of, 376 of officer arresting witness, 416 Libel — see Slander, 62,63 Lien— of judgment, 202-207 foreclosuie of, 246-248 certilicate of, in partition suits, 272 parties holding, to be brought into ac- tion, 273 when on an undivided interest of property, 281 to be satisfied from preferred securi- ties, 284 (In Jiiftirfs'' Courts.) of judgment, 599 Limitation — against foreign causes of action, 532 Lis pendens — notice of, 27,207,267 Lost — evidence of documents, 447 M. Mail— how service of summons made by, 521,522 (In Just ires' Courts.) how service of summons made bj', 643 Mandate or Mandamus — writ of, 466-479 denomination of writ of, 466 bv whom issued, 468.653 wiien to be issued, 467,468,653 to be alternative or peremptory, 469 not to be granted by default, 470 answer to by adverse party, 471 issue on answer may be tried by jury, 472 proof of applicant on trial, 473 new trial may be allowed on, 474 certified copy of verdict to be sent up, 475 argument may be had without jury trial, 476 damages and costs may be awarded applicant, 477 how writ to be served. 478 fine or imprisonment for disobedience of, 479 Mariner — claim of, for wages, 329,330 Mark- Is included in signature, 647 Married Women — when her husband shall be joined, 7 when she may sue alone, 7 when action is between her and hus- band, 7,395 may defend for her own right, 8 cannot be a witness for husband, 395 Matter — irrelevant and redundant, may be stricken out, 57 see Xew Matter — Mayor's ( 'ourt— act organizing, p- 27 jiroceedings in civil cases in, 636-642 ai)])eal from, 366 Memorandum — bill of costs and disbursements, 510 296 I X D E X , [THESE KUMBERS 58 258 Metes and Bouxds— wlifii to be described in complaint inution lor survey of, Mixes am> MiMNfi— pleatlinjrs in to be verified. 571 proof in action for, 621 suits for determination of, 651 proceeds of, to be collected. 651 receiver to take charge of, 651 MiXOK— see IXFA>'T. Mistake— relief from judgment through. 68 Modification— of a verdict, 1|2 of an award, 387 MORTGAOE- must be foreclosed, 260 holder of, need not be a party in par- tition suit. 266 see FoUECLOSCRE. JIOTHER- w hen mav sue for death or injury ol child, ■ 11 Motions— what is a motion, 515 where to be made, 516 written notice of, 517 niay be transferred to another judge. 518 to continue action by successor iu otllce, 18 to change i)lace of trial, 21 to strike out sham answer and de- fenses, 50 irrelevant and redundant matter, 5(^ to vacate arrest or reduce bail, 97 on injunction, 114,116.117 to dissolve. 118 to set aside attachment. l.'}8.139 against steamers. 327 to deposit in court, 1-42 for non-suit, 1;18 to postpone trial, 158 to u|)point referee, 183 for new trial-, 193 for judgment against delinquent bid- der, " " 02i for sale on foreclosure, 248 for survey of land, 2.58 to vacatean order, 334 for judgment against joint debtors, 368 to vacate an award, 386 for a writ of review, 457 of alternate mandate. 469 N. Na-VE— of parties may bo amended, when not known to plaint itf, (/)/ Justice. s' ('"-I{E.SIUENT— in which countv may sue one an- other, " 20 how summoned. dt) attorney appointed for, 31 verification in suits of, 55 proi)erty of, may be attached. 120 judgmeiit by default against, 150 in partition' suits, 269 to give security for costs, 512 how served with papers after appear- ance. 524 (In .Justices^ Courts.) how summoned, 543 NoN-.*ortion, 290 court may order proportion paid, 291 when tenants are unknown, 292 vested lor future contingent rights to receive their proj)ortion, 293 terms of sale shall be made known at time, 294 no referees shall be interested in pur- chase. 295 when sales to be void, 295 report of sale by referee, 296 relerec to execute conveyances, 297 purchaser's receipt may IJe taken as his projiortion, 298 conveyances to be recorded, 299 proceeds of unknown ovviicrs to be invested in securities, 300 securities to be in the name of the clerk of^ the county, and successors in otiice. 301 securities on sale to be taken in name of party entitled to, 302 I^OPERTY, Real, (Continued.) clerk to keep account of interest re- ceived, 303 court may adjudge payment by one party to another. 304 guardian to be paid proceeds, 305 guardian to receive proceeds for in- ssftie persons, 306 guardian may consent to partition, 307 expenses of partition, 308 one referee only may be appointed, 309 (In Justices' Courts.) title not to be tried, 581 I*UBLICATION — of summons for service on non-resi- dent, 30,269 how made 31 proof of service of, 33 (7/1 Justices' Courts.) of summons, 543 Purchaser — delinciueut under execution, 224,225 Q. Question — of fact not in issue by pleadings, on examination of witness. Quo Warranto— writ of, 310-316 see Usurpation. 3 434 R. Real Property — see I^operty. Receiver— may be appointed in civil actions^ 14.3 in equity pleadings, 143 (In Justices^ Courts.) in mining claims, 651 Record— of the judgment, 207 of lis pendens, 27,267 Records- ins]>ection of, 446-454 evidence of judicial, 449-462,655 Recorders' Courts- act organizing, p. 25 appealfrom, 366 commencement of actions in, 636 proceedings in, 636-642 Rede.mption— under execution, 229 how afTected. 230.2;n who mav redeem, 230 from redemptioner, 232 conditions of, 232 payment on, 233 papers necessary in. • 234 purchaser entitled to rents during time of, 236 Redundance— may be stricken out, 67 Relief- summons to recite demand for, in complaint, 24 to be demanded in complaint, 39 REMITTirrUR- clerk of the Supreme Court to send down, 358 Reteree— to examine garnishee, 128 to as.sess damages on default, 150 to try issue, 154,155,181,182 to ascertain facts, 182 objection to, (same as to Juror,) 185,186 report of, 187 REFER TO SECTIONS.] INDEX. 299 Referee, (Continuerl.) exceptiou to decision or report of, 187 report of, to be special verdict, 187 exceptiou at trial by, 191 in proceedii;gs after execution, 238 to examine judgment debtor, 239 in partition to real property, 273,275 to ascertain payment of lien, 274 to divide and allot property, 276 to make a report, 274,277 may take securities for credit, 289 not to be purchaser, 295 to report on sale, 296 mav take receipt of purchaser for his property, 298 one only may be ajipointed, 309 to tind amount of mariners' claim, 330 fees of, 504 when three, all shall meet, 629 Reference — may be ordered, 182 how ordered, 183 number to compose a, 184 Rehearing — of argument in supreme court, rule xxiii Rents — and profits of real property, 64 Repeal — of statutes 648,666 Replevin — suits in, 99-110 plaintiff may claim delivery, 99 shall make atlidavit, 100 shall give undertaking, 102 what affidavit shall contain, 100 sheriff to approve bond, 102 how papers served, 102 defendant mav bond property, 103 may except to plaintiff's bond, 103 sureties of, shall justify, 105 order to take property, 101 if property to be concealed, 107 claim by third persons, 109 sheriff to take property, 101,107,108 to file proceedings, 110 indemnity bond to sheriff, 109 Report — of referee, 187,274,277 exceptions to, 187 Respondent — is adverse to appellant, 335 Return — of summons, 28 of order of arrest, 86 of replevin papers, 110 of writ of attachment, 141 of execution, 212 {In Justices'' Courts.) of summons, 541 of replevin papers, 566 Review— writ of, 455-465 see Certiorari. Revocation — of submission to arbitration, 382 damages for, 389 Rights— redress of private, 1 substantial, not to be effected, 71 Rules- of supreme court, p. 279 s. Salary— 243 see Wages. Sale— of property on execution, 221-223 Sale, (Continved.) certificate of, 227-229 of foreclosed property, 260 of proijerty under partition, 271 disposition of proceeds, 283 may be on credit, 288 terms of should be made known at time of, 294 referee not to be interested in, 295 Avhen void, 295 to be reported by referee. 296 to be confirmed by court. 297 of vessels under execution, 328 notice of, how given, 331 San Francisco— jurisdiction of townships in county of, 535 Satisfaction— of judgment, 208 Seal — impression of. 454, p. 30 Seamen — claim for wages of, 329,330 Sessions, Courts of — act organizing, p. 18 terms of, p. 8 Set- off — assignment not to prejudice, 5,48 definition of, 47 each may be answered, 49 verdict on, when pleaded, 176 judgment by default on excess of, 199 [Injustices'' Coitrts.) may be pleaded, 576 Service — exclusion of day of, on summons, 24 of notices and papers, 520 by mail, 521,522 when to be made on attorney, 523,524 Sham — answers and defenses to be stricken out, 50 Sheriff— to serve summons, 28,542 to arrest defendant, 77 to file arrest papers in court, 86 responsible if defendant escape arrest, 96 to take property In replevin, 101,107.108 to receive indemnity bond in replevin, 109 shall file replevin papers in court, 110 of any county to serve attachment, 123 execution, 210 to execute attachment without delay, 125 to take inventory of property attached, 129 to sell perishable property, 130,221,6-54 to collect debts and credits attached, 130 levied upon, 240 jury of, in attachment, 131 on execution, 218 to return writ of attachment, 141 to summon jury, 159 to keep jury together, 166 to levy on execution, 210 to return execution, 212 to attach steamers, 323 to serve subpoena. 405 judgment on indemnity bond to, 645 (In Justices'' Courts.) may serve summons, 542 attachment, 554 Signature — to include mark, 647 Singular— number to include the plural, 647 Slander— actions for, 62 answer in action for, 63 State— parties not residing in the, 20,30,120,130, 300 INDEX Ctbese kcubbrs State. {Continued.) verilication by, when a party, 55 judicial records of a. 61,449,453 arrest of persons deijartinp from, 73,544 atttacliincnt on contracts made or pay- able in, 120.561 aflidavits taken in or out of, 424.427 depositions taken in or out of, 428-430 cause of action accruing in another, 532 Stay of I'rockkiungs— may be granted after judgment, 197 on appeal, 349 on certiorari, 459 {In Justices'' Courts.) wlien granted, 629 Steam KK8 — actions against, 317-332 for what liable, 317 when may be directly sued, 318 verified complaint against, 319 on whom served, 320 may be attached, 321 nndertaking on attachment, 322 sheriff shall attach, 323 bond to release, 324 who may ai)pear and plead, 325 proceedings, how conducted, 326 motion to discharge attachment, 327 sale of under execution, 328 claim of wages, how asserted, 329 how contested, 330 notice of sale. 3.31 appeal from judgment iu action, 332 Submission — of controversy without action, .377 to arbitration, 380 see CoNTROVKRSY, Arbitration. SUBPtENA — may require attendance, 402 books, &c., 402 purposes for which issued, 403 now served. 404 when witness is concealed, 405 disobedience to, 4f)9 exonerates from arrest, 415 {In .Ju.'itirex' Courl.f.) may be issued, 619 SunscKiPTiON — to pleadings, 51 Substitution — in cases of death or disability, 16 of real party defendant, 658 Successor — of justice in office, 610 Summons, to issue on or after filing complaint, 22 directed to defendant, 23 to be under seal, 23 what to contain and require, 24 to state court, county and party, 24 to reiiuire defendant to answer, 24 to state sum and relief demanded, 24,26 day of service excluded, 24 what constitutes waiver of. 22 how to be served and returned as served, 28,30 in attachment, 141 may he served by sheriff, deputy, or any comnetent witness, 28 how servcM on corporation. 29 on minor or insane person, 2SI on defendant, 29 on non-resident, 30 liy ])ublication, ,30 to he deposited in post otHce, 31 how service of, to Ite proved, 33 admission of service of, 83 certificate of service, 34 appearance of defendant is service of, 35 Summons, {Continuerl.) service of gives jurisdiction, 35 order of arrest mav accompany. 77 when issued in replevin, 99 order of injunction may accompany, 113 to partition .^uit, 268 iu action against steamer, 320 against joint debtors, 368-372 service of authorizes commission, 428, 432 to be explained to foreigner, &i6 to be in Spanish, 646 against co-partners, 656 {In Justire.t' Courts.) may be waived by appearance, 537 how issued, 538 how addressed and what to contain, 640 to be subscribed by justice, 540 when returnable, 541 by whom to be served, 542 against non-resident, 643 not to have blank left in, 611 {In Recorders' Courts.) 637 Supplementary — j proceedings, 238-245 {In Justices' Courts.) j proceedings. 602 I see Execution. I Supreme Court— i act organizing, p. 9 judges and terms of, p. 6 jurisdiction of, p. 10 appeals to, 347-3*32 judge of may arrest usurper, 311 may order testimony of prisoner. 412 clerk of to send down remittitur, 358 appeal to from writ of review, 465 decisions of to be written, 6.57 may make rules, 643 rules of. p. 279 Sureties — Several, liability of on notes and bills, 15 on arrest. 76, 81 in replevin, 102-106. 109 iu attachment, 122, 123, 137 against stieamer, 322 on release of steamer. 323 on appeal bond, &t8-.350, 352, 355, 356 on release bond for contempt, 485 on bond for costs, 512 may compel by action, payment of bond. 527 justification of. 650 on writ of error, rule xxvii. {In Justices' Courts.) on arrest bond. 545 on attachment bond. 553 on replevin bond. 659 on rejjlevin release bond, 661 Surgeon— when to be a witness. 398 Surplus— money on foreclosure to be paid over, 247 Surprise— relief from judgment through, 68 a ground for new trial. 193 SURVKV- of disputed land, 258, 259 of partition land, 276 Tax— of causes to be paid judges for salary, 600 Tknants— joint, tenants in common, for life, for years, 290 REFER TO SECTIONS.] INDEX 301 Tknants. ( Continued.) see I'ROl'ERTY, Keal. see Partition of Kkal I'kopkrty. I'^NDKR— of money on redemption, 233 before suit, 506 [In Jii.tt ires' Courts.) in court, 596 Testimony— clerk to take down, 663 of wituess to be taken on iiostpoue- ment, 664 on deposition, 428^42 see Witness Thing in Action — witness on assignment of, 4 action by assij^nee of, 5 Third Persons — claim of, in replevin, 109 in attachment. 131 on execution, 218 {Injustices^ Courts.) in replevin, 565 Time— for pleading may be enlarged, 68 for appeal do 340 for arbitration to be fixed, 383 computation of, in this Act, 530 Township — persons held to answer in, 535 Transcript — tiling of, in supreme court, rule ii to xiii. Transfer— of causes, on motion, 21 (In Justices' Courts.) of arrest cases, 546 when the justice is a witness, 582 Trial— of isssue of facts not in pleadings. 3 place of, 18, 21 after illness of juror, 164 of action after jury disagree, 169 by jury may be waived, 179 exceptions at, 188-191 see New Trial, Place op Trial, Exceptions. Trustee — when may sue by himself, 6 who is a, 6 claims against, may be joined, 64 may deposit funds'in court, 142 appeal bond in suit by, 353 when to pay costs, 507 u. Undertaking! — on arrest, 76 justification of sureties, 76 on discharge Irom arrest, 81 disposition of, on arrest, 86 in replevin, 102 to bond goods replevied, 104 of indemnity in replevin to sherifl", 109 on claim of third person, 131, 218 on injunction. 115 on attachment, 122 to release attachment, 123, 136 may be prosecuted, 134 justification oli sureties on release bond. 137 of plaintiff to be delivered to deft., 135 on release from arrest of judgment debtor, 239 on attachment against steamers, 322 on release of steamers, 323 on appeal to Supreme Court, 348, 356,360 Undertaking, ( Continued.) on discharge for arrest for contempt, 4S5 for costs by non-resident, 512 on writ of error, rule xxvii. (In Justice.t' Courts.) on arrest. 545 on discharge from arrest, 550 on attachment. 553 to release attachment, 554 on replevin, 559 on release of replevin, 561 of indemnity in replevin suit, 565 on adjournment, 585 Unknown — when defendant's name is, 69, 540 when persons interested in real prop- erty are, 265 Usurpation — of oflSce, 310-316 see office. V. Vacation — courts may issue writs of certiorari and mandate in, 653 Variance — (In Justice.i^ Courts.) between allegata et probata, 579 Venire — see Jurors, Jury. Venue— see Place of Trial, 18-21 (In Justices' i..ourts.) change of, 582 Verdict — sickness of juror before, 164 conduct of "juror before rendering, 166 jury may bring in sealed, 170 agreement upon, 171 court may correct, 172 clerk shall record, 173 is general or special, _ 174 what is a general or special. 174, 175 to establisn amount, 176 value of property and dam- ages, 177 when right of plaintiff to real prop- erty is terminated, 256 against joint debtors for surplus, 373 Verification — of pleadings, 51 when answer need not have, 52 form of, 55 on injunction, 113 against steamer, 319 to confession of judgment, 375 to bill of costs, 510 Vessels- see Steamers. 317-332 Violation — (In Recorders' Courts.) of ordinance, suits for, 639 Wages— when subject to execution, 243 Ward — see Infant, Guardian, 9-11 Waste— actions for, 249-253 Wipe— see Married Woman, 7 Withholding — see Detainer, 64, 253 Witness — on assignment of chose in action, 4 302 INDEX WlTNEPP. (Contintieri.) convenience of, may change venue, 21 may be examined in challenge to jurors, 163 to referees, 186 on arbitration, 383 before jury on claim of third persons, 218 in jreneral, 391-554 all persons may be, 391 who shall be excluded as, 392 true test of interest, 393 adverse party to be, 393 who shall not be, 394 husband and wife as, 395 how sworn, 443 to be examined on postponement of cause, 664 when attorney shall not be, 396 when clergyman shall not be, 39" when physician shall not be, 398 when public officer shall not be, 399 judfre or juror may be, 400 interpreter for, 401 manner of compelling attendance of, 402-416 eubpcena may be duces tecum, 402 when to be served out of the county, 402 requirements of, 403 how service made, 404 i'ees to be tendered with, 404 sherifT to break in house to serve, 405 disobedience of, 409 punishment on, 410 damages for, 410 any person present may be made, 406 duty to attend as, 407 answer of, 408 as to conviction of crime, 408 failure of to attend, 411 attachment and arrest of absent, 411 when confined in prison, 412 order for his testimony, 413 in the county, 414 to be exonerated from arrest, 415 liability of officer arresting, 416 txamiiiation of parties to an action, 417-423 for discovery, 417 party to action may be, 418 Iiis evidence may be rebutted, 419 if party refuses to appear as, 420 party in his own behalf may rebut, 421 any person benefited may be, 422 when co-partner8 may be for them- e«lves, 423 WlT>'ES9, {Continufri.) testimony by deposition in the State, 428-481 in what cases allowed, 428 notice to be served, 429 affidavit of the facts, 429 time of notice, 429 examination on deposition, 430 testimony to be directed to clerk of the court, 430 depositions read after death, 430 once taken may always be read. 431 testimony by riepositinn out of the State, 432-436 when may be taken, 432 how commission to issue, 433 interrogatories to be prepared and set- tled, 434 deposition to be sealed and returned to court, 435 continuance for absence of, 436 proceedings to perpetuate testimony, 437^42 testimony may be perpetuated, 437 affidavit on application for, 438 examination to be taken, 439 testimony to be taken and filed, 440 affidavit to show compliance with stat- tutes, 441 testimony, when to be used, 442 (/;i Justirfs' Courts.) when justice is, adjournment for absence of. Woman— how to sue and be sued, {In Justices' Courts.) cannot be arrested, see Married Woman. Writ— of attachment, see Attachment. of certiorari, see ("ertiokari. of arrest, see Akrebt. of mandate, see Mandate. Writings— inspection of, 446-454 court may order copy of, for evidence, 446 when evidence may be given of con- tents, 447 evidence of lost or recorded, 447 alteration in to be accountecl for, 448 evidence of judicial, 449,452,655 of courtj 450 certificate by minister or consul to for- eign, 451 evidence of statutes, 453 how seal to be impressed on, 454 include printing, 647 Wronqb— redress of private, 1 546,582 584 514 DISTRICT COURT REPORTS OF CALIFORNIA. Vol. I., 400 pages bound in law calf, $6,00. Vol. II. now issuing in monthly num- bers of 48 pages each. 4th number now in press. Price, 50 cents each. The undersigned, having completed the first volume of the District Court Reports, now offers the same to the profession, and is issuing the numbers of the second volume which will comprise the decisions of the year 1858. He has adopted many suggestions made to him by the bencli and profession, and hopes by care and attention to enhance the value of each succeeding volume. Copies sent by mail, or by express, on receipt of the subscription price. For sale at the principal book stores in the State. Address HENRY J. LABATT, S. W. Corner Montgomery and Commercial Streets, San Francisco. OPIIVIOIVS OF THE SAIV FRAIVCISCO PREii^im. [From the San Francisco Herald.] Labatt"8 Reports. — The twelfth and last number of the first volume of Reports of Cases determined iu the District Courts of California, has beeu received by us. Mr. Labatt has ren- dered much service to the profession of which he is a member, by compiling these reports. They will supply a want that has existed up to this time iu California, namely: a vehicle of communicating to lawyers, at an early moment, in reliable shape, the decisions of our District Courts, as they are made by the Judges. On points of practice, and on questions that the Supreme Court has not passed upon, the opinions have great weight in the various' Courts ol original jurisdiction. We consider the volume just completed a valuable acquisition to the legal science of this State, useful not alone to the bar, but also to the bench. It ought to find its way to the hands of every lawyer in practice, who desires to be put iu possession of the latest decisions given in our tribunals. The first volume contains about 400 pages, aud is provided with a thorough index, making reference to the points decided and title of cases a matter of ease and convenience. Mr. Labatt continues the publication of his reports, aud his work should receive the patronage its merits deserve. [From the Alta California.] District Court Reports.— We are indebted to the compiler, Henry J. Labatt, Esq., for the twelfth number of the " Reports of cases determined iu tlie District Courts of the State of California." It exhibits the care aud attention wliicli has been bestowed upon this publi- cation since its commencement. \ ivi508i559 ' 1 ' 11 r RFRKELEY LIBRARIES iliiir .JSi »>"■. .V < iUjj^^ *"»l*:V»i"''' Zv^. X^ ^