UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE CODE OP CIVIL PROCEDURE. THH CODE OF CIVIL PROCEDURE OF THE) STATE OF CALIFORNIA, ADOPTED MARCH U, 1872, AND AMENDED UP TO AND INCL,UDING 190B. WITH STATUTORY HISTORY AND CITATION DIGEST UP TO AND INCLUDING VOLUME 147 OF CALIPOKNIA RKFUKTS. EDITED BY JAMES H. DEERING, Of the Ban Francisco Bar. STATUTORY HISTORY AND CITATION DIOHST BT WALTER S BRANN, Of the San Francisco Bar. CONSOLIDATED AND EDITED JUNE 1, 1306, BT R M. SIMS, Of the San BYanclsco Bar. SAN FRANCISCO: BANCROFT - WHITNEY COMPANY, Law Publishers and Law Booksellers. 1906. J Copyright 1006. BANCROFT- WHITNEY CO. SAN FBANCTRCO! THE FILMER BROTHERS ELECTROTYPE CO., Typographers ami Stereotypera. 1906. CODE OF CIVIL PROCEDUUE. IN FOUR PARTS. PRELIMINARY PROVISIONS, §§ 2-S2. Part I. Of Courts of Justice. §§ 33-304. II. Of Civil Actions. §§ 307-1059. III. Of Special Proceedings of a Ciyil Nature. SS 1063- 1822. IV. Of Evidence. §§ 1823-2104. SUMMARY OF CONTENTS. PART I.— COURTS OF JUSTICE. Preliminary Provisions. §§ 2-32. Title I. Courts of Justice — Their Organization, Jurisdic- tion, and Terms. §§ 33-153. n. Judicial Officers. §§ 156-187. III. Persons Invested with Judicial Powers. §§ 190- 259. IV. Ministerial Officers of Courts of Justice. §§ 262- 274. V. Persoas Invested with Ministerial Powers. §9 275-30i. PART II.— OF CIVIL ACTIONS. Title I. Form of Civil Actions. §§ 307-309. II. Time of Commencing Civil Actions. §§ 312-363. III. Parties to Civil Actions. §§ 367-390. IV. Place of Trial of Civil Actions. §§ 392-400. V. Manner of Commencing Suit §§ 405-41^. VI. Pleadings in Civil Actions. §§ 420 476. VII. Provisional Remedies in Civil Actions. §§ 478- 574. Vni. Trial and Judgment in Civil Actions. §§ 577- 680 1^. IX. Execution of the Judgment in Civil Actions. §§ 681-721. X. Actions in Particular Cases. §§ 726-827. XI. Proceedings in Justices' Courts. §§ 832-926. XII. Proceedings in Police Courts. §§ 929-933. XIII. Appeals in Civil Actions. §§ 936-980. XIV. Miscellaneous Provisions, §§ 989-1059. O) % SUMMARY OF CONTENTS. PART III.— SPECIAL PROCEEDINGS. Preliminary Provisions. s§ 1363-1064. Title I. Writs of Mandate, Fts-»1ew, aad Prohibition. §§ 1067-1110. H. Contesting Elections. |s 1111-1127. in. Summary Proceedings. 5^ 11^2^1179. IV. Enforcement of Liens. 5§ 113^1207. V. Contempt §§ 1209-1222. VI. Voluntary Dissolution of Corporations. §§ 1227- 1234. VII. EJmlnent Domain. §§ 1237-1264. VIII. E&cheated Estates. §§ 1269-1272. IX. Change of Names. §§ 1275-1279. X. Arbitration. §§ 1281-1290. XL Proceedings in Probate Courts. §§ 1294-1810. Xn. Sole Traders. §§ 1811-182L XIXL Proceedinss in Insolvency. §S 1822. PART rV.— OF EVIDENCE. General Definitions and Divisions. §§ 1823-1839. Title I. General Principles of Evidence. §§ 1844-1870. II. Kinds and Degrees of Evidence. §§ 1875-1978. III. Production of Evidence. §§ 1981-2054. IV. Effect of Evidence. §§ 2061. V. Rights and Duties of Witnesses. §§ 2064-2070. VI. Evidence in Particular Cases and General Provi- sions. S§ 2074-2104. CORRESPONDING SECTIONS OF THE PEACTICE ACT, PKOBATE ACT AND Code of Civil Procedure. Practice Act. Code C. P. Practice Act. Code C. P. § 1 § 307 § 32 § 414 § 2 § 308 § 33 § 415 § 3 § 309 § 34 § 415 § 4 § 367 § 35 § 416 § G § .368 § 36 § 420 § 6 § 369 § 37 § 421 § 7 § 370 § 38 § 422 § 8 § 371 § 39 § 426 § 9 § 372 § 40 § 430 § 10 § 373 § 41 § 431 § 11 § 376 § 42 § 431 § 12 § 378 § 43 § 432 § 13 § 379 §'44 § 433 § 14 § 382 § 45 § 434 § 15 § 383 § 46 § 437 § 16 § 385 § 47 § 438 § 17 § 3S9 § 48 § 440 § 18 § 392 § 49 § 447 § 19 § 393 § 50 § 433-4 § 20 § 395 § 50 § 453 § 21 § 397 § 51 § 446 § 22 § 405 § 52 § 446 § 23 § 40C-407 § 53 § 447 § 24 § 407 § 54 § 448-449 § 25 § 407 § 55 § 446 § 26 § 407 § 56 § 454 § 27 §409 § 57 § 453 § 28 § 410 § 58 § 455 § 29 § 411 § 59 § 456 § 30 § 412 § 60 § 457 § 31 § 413 § 61 § 459 10 COaRESPONDINQ SECTIONS, Practice Act Code C. P, Practice Act. Code C. P. S 62 S 450 i 63 § 461 § 64 ......... § 427 I 65 § 462 § 66 I 463 8 67 § 464-472 § 68 ,.. § 473 § 69 :. § 474 § 70 § 452 § 71 § 475 S 72 § 478 § 73 § 479 § 74 § 480 $ 75 § 481 § 76 § 482 S 77 § 483 S 78 § 484 § 79 § 485 § 80 § 486 § 81 § 487 § 82 .,-,. § 488 § 83 § 489 § 84 § 490 S 85 § 491 § 86 § 492 § 87 § 493 S 88 § 494 § 89 § 495 § 90 § 496 § 91 § 497 § 92 § 498 § 93 § 499 $ 94 § 500 § 95 § 501 5 96 § 502 i 97 § 503 § 98 § 504 § 99 S 509 8 100 § 510 8 101 § 511 6 102 8 512 8 103 § 513 8 104 § 514 8 105 § 515 8 106 § 516 8 107 8 517 8 108 § 518 §109 8 519 §110 8 520 8 111 8 625 § 112 8 526 § 113 8 527 I 114 8 523 § 115 8 529 § 116 ....;.... § 530 § 117 § 531 §118 § 532 §119 § 533 §120 § 537 §121 8 538 § 122 8 539 § 123 § 540 §124 § 541 § 125 § 542 § 126 § 543 § 127 § 544 § 128 § 545 § 129 § 546 § 130 § 547 § 131 § 549 § 132 § 550 § 133 § 551 § 134 § 552 § 135 § 553 § 136 § 554 § 137 § 555 § 138 § 556 § 139 § 557 § 140 § 558 I 141 § 659 § 142 8 572 § 143 § 564-569 § 144 8 577 § 145 § 578 § 146 8 579 8 147 § 580 § 148 8 581 § 149 § 582 § 150 § 585 § 151 § 588 § 152 § 589 8 153 § 590 COaRESPONDINO SECTIONS. 11 Practice Act Code C. P. Practice Act Code C. P. §154 § 591 § 155 § 592 §156 § 593 §157 § 594 §158 § 595 §159 § 600 6 160 § 604 §161- § 601 §162 § 6oa §163 § 603 § 164 ..V § 615 §165 § 608 §166 '.8 613 §167 § 612 8 168 § 614 §169 § 616 § 170 § 617 §171 § 618 § 172 § 619 5 173 § 618 5 174 § 624 8 175 § 625 §176 § 625 §177 § 627 §178 § 628 § 179 § 631 §180 § 633 §181 § 636 §182 § 638 §183 § 639 §184 § 640 §185 § 641 §186 § 642 § 187 § 643-645 §188 § 648 § 189 § 649-652 § 190 § 648 § 191 § 647 §192 § 656 § 193 § 657 §194 ^... 8 661 § 195 § 661 §196 § 661 § 197 § 664 §198 § 665 § 199 § 666 § 200 i -667' §201 8 668 8 202 § 669 8 203 § 670 § 204 8 671 §205 § 672 § 206 ...; § 673 §207 § 674 8 208 8 675 §209 8 681 §210 § 682 § 211 4.. Canceled § 212 § 683' §213 § 684 §214 § 685 §215 .-...§ 686 §216 § 687 §217 § 688 §218 . § 689 §219 § 690 §220 § 691 §221 § 692 § 222 §' 693 §223 § 694 §224 § 695 §225 § 698 §226 § 697 § 227 .'. 8 698 8 228 § 699 §229 § 700 §230 § 701 §231 8 702 §232 § 703 8 233 § 704 §234 § 705 § 235 § (06 §236 § 707 §237 § 708 §238 § 714 §239 § 715 §240 § 716 §241 § 717 §242 § 718 §243 § 719 §244 § 720 § 245 § 721 12 CORRESPONDING SECTIONS. Practice Act Coda G. ?. Practice Act Code C. P. ft 246 § m §292 ft 780 I 247 § 727 §293 § 781 J 248 g 728 §294 § 782 §24^ § 731 §295 § 7^3 § 250 § 733 § 296 § 784 §251 § 732 §297 § 785 §252 § 734 §298 § 786 8 253 § 735 §299 § 78f § 254 § 733 § 300 § 783 8 255 § 739 § 301 § 789 §256 § 740 §302 8 790 § 257 § 741 § 303 § 791 §258... § 742 §804 § 792 8 259 § 743 §805.... § 793 260 8 744 8 306 § 794 I 261 8 745 §307 § 795 262..* 8 748 §308 § 798 8 263 8 747 §309 ..8 797 8 264 8 752 §310....- § 803 1265 8 753- §311 § 804 8 266 6 754 8 312 6 805 8 267 8 755 §313 § 808 268 § 756 6 314 8 807 269 § 757 8 315 8 808 8 270 § 768 8 816 8 809 8 271 8 759 §317 § 813 8 272 § 760 § 318 8 814 8 273 § 761 §819. 8 815 8 274 8 762 § S20 8 816 8 275 8 783 §321 § 817 8 278 8 764 §822 § 818 8 277 8 765 §823., § 819 8 278 8 766 §324 § 820 8 279 8 767 8 325 , § 821 280, 8 768 8 326 6 822 281 .r... 8 769 8 327 ;...,.... 8 823 282 ........... 8 770 8 328 8 824 8 283 ...... .i. 9 771 8 329 6 825 8 284 , 8 772 8 330 8 828 8 2F5....^ 8 773 §331 8 827 8 285 .....8 774 8 332 ., § 827 8 2C7 § 775 8 333 § 936 8 288 8 77S 8 334 § 937 8 2S9 8 777 §335 8 938 8 2S0 ....;.... 8 778 § 3S6 8 S39 8 291 § 779 § S37 8 940 I CORRE«:poNDINO SECTIQNS. 18 Practice Act Code C. P. Practice, Act Code 0. P. ( 838 fi 339 § 340 Appeals § 341 t§ 935-^)69 § 342- ? 343 , % 344 ,. § 845 § 956' % 346 ......... ft 950-954 % 847 .......*., § 963 fi 848 § 941 f 849 ..> •.. % 943 % 350 I 943 § 351. § 944 « 852 § 945 % 353 § 94$ 5354 § 947 § 355 § 94$ § 35G S 949 S 357 % 358 .., § 958 § 359 § 963 % S60 % 941 % 361 , 8 941 §362 § 841 § 363 Repealed. § 364 <.. Repealed. §365 ......... Repealed. 8 366 Repealed. §367 § 9S0 § 368 § 989 fi 369 fi 990 § 870 § 991 I 871 § 992 § 372 § 993 § 873 § 994 8 374 § 1133 8 875 8 1133 8 376 § 1134 5 877 6 1138 6 378 % 1139 fi 379 § 1140 % 880 8 1281 8 881 § 1282 « 5g2 .^. § 1283 I 883 % 12S4 fi 884 , fi 1285 8 885 8 1289 8 38^ 8 1287 § 387 81288 § 888 % 1289' 8 389 ,.♦ 8 i^aa fi 390 ,... fi 997 % 891 fi 1879 § 392 6 1879 8 393 Repealed" 1870 8 894 ,....,.. 8 1880 I 895 8 1S8V i39S 8 188r 6 897 8 1881 % 398 , ►. . 8 1881« fi 399 ...* 8 18»i § -400 8 18&» fi 401 § 1884 8 402 *. 8 1985 8 402 fi 1989 § 403 8 19S3 8 404 8 1987 8 405 8 1988 8 406 8 1990 8 407 > > 8 2064 8 408 ....,..,-, I 2065 6 409 ....w... § 1991 6 410 % 1993 6 411 8 1993 6 412 8 1995 % 413 •§ 1993 8 414 8 1997 § 415 .8 2065 §' 416 ».... § 2068-9 % 417 fi 418 8 419 Repealed. § 420. 8§ '63,701 8 421- •8 422 8 423 .,... 8 424 S 2013 8 425 § 2013 8 426 8 2014 8 427 8 2015 I 428 fi 2021 14 CORRESPONDING SECTIONS. Practice Act, Code C. P. Practice Act. Code C. P. § 429 '. § 2031 § 430 § 2032 § 431 § 2034 § 432 § 2020 § 433 § 2024 § 434 § 2025 § 435 § 2026 § 436 § 2027 § 437 § 2083 § 438 § 2084 § 439 § 2085 § 440 § 2086 § 441 § 2087 § 442 § 2088 § 443 §,2093 § 444 § 2096 § 445 § 2097 § 446 § 1000 § 447 § 1855 § 448 § 1982 § 449 § 1905 § 450 § 1905-22 § 451 § 1906 § 452 § 1907 § 453 § 1900 § 454 ...' § 1930-31 § 455 § 1067 § 456 § 1068 ■ § 457 § 1069 § 458 § 1070 § 459 § 1071 § 460 § 1072 § 461 >... § 1073 § 462 § 1074 § 463 § 1075 § 464 § 1076 § 465 § 1077 § 466 § 1084 § 467 § 1085 § 408 § 1086 § 469 § 1087 § 470 § 1088 § 471 § 1089 § 472 § 1090 § 473 8 1091 § 474 $ 1092 § 475 § 1093 § 476 § 1094 § 477 ■§ 1095 § 478 § 1096 § 479 § 1097 § 480 § 1209 § 481 § 1211 § 482 § 1212 § 483 § 1213 § 484 § 1214 § 485 § 1215 § 486 § 1216 § 487 § 1217 § 488 § 1218 § 489 § 1219 § 491 § 1220 § 492 § 1221 § 493 § 1222 § 494 § 1021 § 495 § 1022 § 496 § 1023 § 497 § 1024 § 498 ...... § 1025 § 499 .'. § 1026 § 500 § 1027 § 501 Repl'd 1855. 250 § 502 Repl'd 1855, 250 § 503 Repl'd 1855, 250 § 504 § 1028 § 505 § 1029 § 506 § 1030 § 507 § 1031 § 508 § 1032 § 509 Canceled, § 510 § 1033 § 511 § 1035 § 512 § 1036 § 513 § 1057 § 514 § 1037 § 515 § 1003 § 516 § 1004 § 517 § 1005 § 518 § 1006, § 519 § 1010-16 § 520 § 1011 § 521 § 1012 CORRESPONDING SECTlOWa. IS Vractlce Act Code C. P. Practice Act Code C. P. § 622 § iOi3 (623 § 1014 i 624 § 1015 e 525 § 1047 8 526 § 1048 § 527 § lC-50 §528 § 1052 §629 § 1053 § 530 § 1054 § 531 § 1043 § 5S2 § 361 § 534 ..." § 842 §535 § 832 §536 § 889 § 587 §638 § 839 § 539 § 843 § 540 § 844 § 541 § 845 § 542 § 849 § 543 § 849 § 644 § 861 § 545 § 862 § 546 § 863 § 547 § 864 § 548 § 866 § 549 § 550 § 875 § 551 § 865-638 § 552 § 866 § 553 ......... § 867 § 554 § 868 § 555 § 869 § 556 § 870 § 557 § 870 § 558 § 870 § 559 § 870 § 560 § 870 § 561 § 870 § 562 . § 870 § 563 § 870 § 564 § 870 § 565 § 870 § 566 Tg 870 § 567 § 1057 § 668 § 878 §569 8 870 §670 § 852 § 571 § 851 §572 § 851 § 573 8 853 § 574 ....;.... § 855 § 576 § 886 § 577 § 887 § 578 § 854-6-7 §579 § 469 8 580 § 858 §581 § 838 §582 § 833 § 6^3 § 875-8 § 584 § 875-6 § 586 § 877 § 586 § 870-72 § 587 § 881-2 § 588 § 260 § 589 § 227 § 690 § 885 S 5S1 § 890 5 692 ., 8 870-1 § 593 8 881 § 594 8 891-2 § 695 8 894 § 596 § 895 § 597 § 893 § 598 § 896 8 599 8 897-900 8 600 8 901 § 601 8 902 § 602 :.. 8 904 § 603 8 925 6 604 § 911 § 605 § 912 § 606 8 913 8 607 '....v 8 914-915 8 608 8 916 6 609 8 917 8 610 8 918 8 611 § 920 8 612 § 922 § 613 § 849 8 614 § 849 § 616 8 «e« IC CORRESPONDIIiG SECTIONS. Practice Act Code C. P. Practice Act Code C. P. §617 § 907-9 § G39 § 932 §618 § 910 §640 § S74 § 619 § 919 § 641 § £33 § 620 § 2019 § 643 § 129-SO §621 § 748 §645 §1055 §622 § 657 §646 §1056 § 623 § 659 § 647 § 1058 §624 § 974 §650 §1057 §625 § 975 § 651 § 564-69 § 626 § 976 § 652 § 664-63 §627 § »77 §653 §1108 § 628 § 978 § 654 § 548 §629 § 979 §655 §1918-19 § 630 Repl'd 1854, 100 § 656 § 388 §631 § 924 §658 § 386 § 632 Repl'd 1855. 250 § 659 § 887 § 633 § 921 § 660 § 887 § 634 § 923 § 661 § 387 § 635 § 925 § 662 § 387 636 § 929 § 6G3 § 1051 637 § 930 § 684 § 696 { 638 § 931 § 665 Probate Act Code C. P. Probate Act Code C. P. § 2 § 1294 § 23 § 1316 § 3 § 1295 § 24 § 1317 § 4 § 1298 § 25 § 1318 § 5 § 1299 § 27 § 1322 § 6 § 1300 § 28 § 1323. § 7 § 1293 § 29 § 1324 § 8 § 1299 § 30 § 1327 § 9 § 1299 § 31 § 1328 § 10 § 1303 § 32 § 1329 § 11 § 1302 § 33 § 1330 § 12 § 1305 § 84 § 1331 § 13 §1303 § 35 §1332 § 14 § 1304 § S6 § 1333 § 15 § 1304 § 37 § 1338 I 15 § 1303 § 38 § 1339 § 17 § 130S § 39 § 1340 § 18 § 1307 § 40 § 1341 § 19 I 1308 § 41 § 1349 § ZO 6 1312 § 42 § 1350 5 21- § 1315 § ^3 § 1351 { 22 9 1215 § 44 § 1352 CORRESPONDING SECTIONS. 17 Probate Act. Cede C. P. Probate Act Code C. P. i 45 8 1353 { 46 S 1354 9 47 § 1355 i 48 S 1358 i 49 § 1356 S 60 '... § 1S60 S 61 ......... § 1361 i 52 '. § 1365 § 63 § 1365 § 54 § 1367 § 55 § 1369 S 56 § ia70 § 57 § 1368 § 58 § 1371 § 59 ;... § 1372 S 60 § 1373 i 61 § 1374 § 62 § 1375 § 63 8 1376 § 64 § 1377 § 65 § 1373 8 66 § 1379 8 67 ..• 8 1383 8 68 8 1384 i 69 8 J.385 § 70 8 1386 § 71 ; 8 1363 i 72 8 1387 i 73 8 1388-90 9 74 8 1391 § 75 8 1392 5 76 8 1393 i 77 8 1396 8 78 8 1397 6 79 § 1398 8 80'.. '. § 1399 § 81 § 1400 i 82 .-8 1401 S 83 S 1402 9 84 § 1403 9 85 8 1404 9 86 8 1405 8 87 8 1408 8 88 8 1411 9 89 ;... S 1412 9 90 8 1413 § 91 § 1414 8 92 § 1415 § ^83 8 1416 8 94 8 1417 9 95 8 14U § 96 8 1425 8 97 ; 8 1426 § 98 8 1423 § 99 8 1424 8 100 9 1427 I 101 8 1428 § 102 8 1429 8 103 8 1430 8 104 ., 8 1432-33 8 105 8 1443 9 106 8 1444 9 107 8 1445 8 108 8 1446 8 109 8 1447 8 110 8-1448 8 111 8 1449 8 112 § 1450 8 113 8 1451 8 114 8 1452-53 § 115 8 1516 8 116 8 1458 8 117 8 1459 9 118 8 1460 9 119 § 1461 9 120 8 1464 9 121 8 1465-75 8 122 § 1466 8 123 8 1467 8 125 I 1468 § 126 ......... 8 1469 8 127 8 1470 8 128 8 1490-91 9 129 8 1492 8 130 8 1493 8 131 8 1494-95 8 132 .8 1496 8 133 6 1497 9 134 § 1498 8 135 ? 1499 §136 o § 1590 § 137 9 1501 18 CORRESPONDING SECTIONS. Probate Act. Code C. P. $ 138 § 1502 § 139 § 1503 § 140 § 1504 § 141 § 1505 § 142 § 1507 § 143 § 1508 § 144 § 1509 S 145 § 1510 i 146 § 1511 § 147 § 1512 S 148 § 1517 § 149 § 1518 S 150 § 1522-23 i 151 § 1525 § 152 § 1526 §153 § 1526 i 153 § 1530-31 § 154 § 1536 § 155 § 1537 S 156 § 1538 8 157 § 1539 S 158 § 1540 I 159 § 1539 § 160 § 1541 § 161 § 1542 § 162 § 1543 § 163 § 1544 § 164 o... § 1545 § 165 .., § 1546 § 166 § 1547 § 167 I 1548-50 S 168 ■? 1551 § 169 § 1552 § 170 § 1553 § 171 § 1554 S 172 § 1555 S 173 .\. § 1556 § 174 § 1557 § 175 § 1558 S 176 § 1559 § 177 § 1560 § 178 § 1561 8 179 § 1562 § 180 § 1563 § 181 ...... § 1564 8 182- 8 1565 Probate Act. Code C. P, § 183 § 1566 8 184 8 1567 8 185 8 1568 8 186 8 1569-70 § 187 8 1569 8 188 8 1571 8 189 § 1572 § 190 § 1573 8 191 § 1574 § 192 8 1575 § 193 8 1676 8 194 8 1581 8 195 .'.. 8 1582 8 196 8 1583 8 197 8 1584 § 198 § 1585 8 199 8 1586 8 200 ; § 1687 8 201 § 1588 8 202 § 1589 8 203 § 1590 § 204 .'.... § 1591 8 205 8 1597 8 206 8 1598 8 207 8 1599 8 208 8 1600 8 209 § 1601 § 210 § 1602 § 211 § 1603 8 212 8 1604 8 213 8 1605 8 214 8 1606-7 § 215 8 1612 § 216 § 1613 § 217 S 1614 8 218 § 1615 8 219 8 1616 § 220 8 1617 § 221 8 1618 I 222 8 1622 § 223 § 1623 8 224 § 1624 § 225 ..• § 1625 § 226 § a628 8 227 § 1627 8 228 § 1623 C0RR3SP0NDIN0 SECTIONS. 19 Probate Act Code C. P. Probate Act Code C. P. § 229 § 1629 S 230 § 1630 §231 § 1631 § 232 i 1632 5 233 § 1633 8 234 I 1635 8 235 § 1636 8 236 § 1636 § 237 § 1637 § 23S § 1638 8 239 § 1643 § 240 § 1644 § 241 § 1645 8 242 § 1646 § 243 § 1647 8 244 § 1648 § 245 § 1649 § 246 § 1650 § 247 8 1651 § 248 8 1652 § 249 § 1653 § 250 § 1658 § 251 g 1659 § 252 § 1660 § 253 § 1661 § 254 § 1661 8 255 § 1661 § 256 § 1661 8 257 § 1662 8 258 § 1665 8 259 § 1666-67 8 260 § 1668-69 § 261 g 1675 § 262 g 1677 8 263 § 1676 8 264 § 1678 8 265 § 1679 8 266 g 1680 8 267 g 1681 6 268 § 1683 8 270 § 1683 8 271 g 1684 § 272 g 1685 g 273 § 1686 8 274 g 1691 § 275 § 1692 8 276 ;.. g 1693 § 277 g 1695 § 278 g 1096 § 279 g 1697 § 280 § 1698 § 281 S 1436 § 282 .......... g 1411 g 283 .-. § 1437 § 284 § 1438 § 285 § 1439 g 286 g 1440 % 287 '.. g 1704-5 § 288 8 1710 g 289 § 1709 § 290 g 17U g 291 g 2093 § 293 g 1713 g 294 g 1616-11 g 295 ■§ 1718 g 296 g 1719 g 297 g 298 g 299 ».. § 300 .; See §g § 301 969-971 g 302 g 1720 g 302 g 1738 g 302 g 1739 g 304 g 1728 I 305 g 1729 g 305 g 1741-42 g 306 g 1730 g 307 g 1731 g 308 g 1732 g 309 / g 1733 g 310 g 1734 g 311 g 1735 g 312 § 1736 g 315 8 316 g 317 8 318 g 319 .... See Civil Code g 320 §§ 1385-1399 § 321 g 322 20 CORRESPONDING SECTIONS. Probate Act CJode C. P. Probate Act. Code C. P» § 323 § 324 § 325 ;... § 326 »,.. § 328 § 1269 § 329 ■§ 1271 § 331 § 1272 § 336 § 1747 § 337 § 1748 § 338 § 1749 § 339 § 1750 I 340 § 1751 § 341 § 1752 § 342 § 1753-54 § 343 § 1754 § 344 § 1757 § 345 § 1758 § 346 § 1759 § 347 § 176S § 348 § 1764 § 349 ..w. § 1765 §350 § 1768 § 351 § 1769 i 352 ^. § 1770 S 353 § 1772 § 354 § 1773 S 355 § 1777 5 356 § 1778 i 357 § 1779 § 358 ..4 § 1780 § 359 § 1781 i 360 § 1782 § 361 § 1783 § 362 , § 1784 § 363 § 1785 § 364 § 1786 § 365 § 1787 S 366 S 1788 § 367 S 1789 § 368 § 1790 § 369 § 1808 § 370 § 1774 § 371 § 1792 § 372 § 1801 § 373 S 1802 § 374 8 1803 I 375 § 1804 I 376 § 1805 § 377 .,,, § 1800 § 378 § 1793 § 379 § 1794 § 380 ., § 1795 § 381 § 1796 § 382 § 1776 § 383 § 1807 § 384 § 1775 § 385 § 1791 § 386 § 1797 * 387 S 1798 § 888 i 1799 § 389 § 390 Civil Code % 391 Sections I 391 264-267 CORRESPONDING SECTIONS, PRACTICE ACT. Table of sections of which there Is no corresponding section in the Code of Civil Procedure. SECnOK ENACTSn. AMENDED. BBFEAUSD. CAI-EKP. CITATION. 211 Apt. 29, 1851 1863:689 By Code. 857 Apr. 29. 1851 1854: 65 Ey Coda. 363 Apr. 29, 1851 By Code, 364 Apr. 29, 1851 By Code, 365 Apr. 29, 1851 IS54: 66 By Coda. S66 Apr. 29. 1851 1853 :277 1"854^ 66 1S54: 73 By Coda,, 89- 99 993 Aj2r. 23, 1S51 1854: 66 1863 :701 4- 16 7- 96 1869-70 :6B2 By Code. 7-256 9- 70 16-556 17-604 25-189 26- 35 86-512 43-529 122-657 417 Apr. 29. 1851 1863 :701 By Code. By Code. 17-604 41S Apr. 29, 1851 1863 :702 • 17-604 26- 35 419 Ajir. 28, 1951 By Coda. 420 Apr. 29, 1851 1863:701 By Code. 28-300 35- 97 421 Apr. 29, 1851 1863 :702 9- 70 •26- 85 422 Apr. 29, 1851 1861:521 1863 :702 22-115 22-235 22-236 22-660 26-147 26-148 423 Apr. 29, 1851 1854: 67 1863 :702 8-302 490 Apr. 29. 1851 By Code. . 601 Apr. "Za, 1851 1853 :278 1855 :250 502 Apr. 29, 1851 1853 :278 1855 :250 603 Apr. 29, 1851 1855 :250 509 Apr. 29. 1851 1859 :224 1862: 88 1863 :498 By Code. 633 Apr. 29, 1851 IB60:304 By Code. 637 Apr. 29, 1851 I'Bee :708 By Cods. 643 Apr. 29, 1851 1854: 67 By Code. 84-645 34- €46 549 Apr. 29, 1851 By Code. 575 Apr. 29, 1851 By Code. 615 Apr. 29, 1851 By Coda. «dO Apr. 29. 1851 1853:281 1854: 71 22 CORRESPONDING SECTIONS. SECTION. ENACTED. AMENDED. EEPEAL.ED, CAI^ EEP. CITATION. 632 642 644 648 649 Apr. 29, 1851 Apr. 29, 1851 Apr. 29. 1851 Apr. 29, 1851 Apr. 29. 1851 11^4: n 1855 :199 1855 :250 By Code. By Code. By Code. By Code.' PROBATE ACT. Table Ckf sections of which there is no corresponding section in the Code of Civil Procedure. EECTIOH. ENACTKO. AMBNDED. REPEALED. CAL. EEP. CITATION. 1 Apr. 22, 1850 1851 :448 1864:367 1851:489 20-158 £6 Apr. 22. 1850 , 1851:448 1851 :489 121 Apr. 22, 1850 1851 :448 1851:489 29-372 35-313 35-315 35-316 S5-323 43-643 S«9 Apt. 22, 1850 1851 :448 1861 :650 1851 ^489 291 Apr. 22. 1850 1851 :448 1851 :489 292 Apr. 22, 1850 1851 :448 1861 :653 1851 :489 295 Apr. 22. 1850 1855 :S00 1851 :489 86-280 1851 :448 1861:664 49-471 803 Apr. 22. 1850 1851:448 1851 :489 818 Apr. 22, 1850 1851 :4S9 S14 Apr. 22, 1850 1855: S3 1851:489 ISei :^55 815 Apr. 22, 1850 1851 :489 .818 Apr. 22. 1850 1S51 :489 817 Apr. 22. 1850 1851 :4S9 PRACTICE ACT. NOTE.— Section numbers from 649 on are numbers giren by tbe Editor of Practice Act in 1854. and cover new sections added and supplemental sections. PROBATE ACT. NOTE. — Sectkm numbers from 318 on are numbers glyen by the Cdttcr of Probate Act In 1858, and cover new sections added aintt rapplemental sections. AN ACT TO ESTABLISH A CODE OF CIVIL PEOCEDUEE. Tlie People of the State of California, represented In Senate and Assembly, do enact as follows: TITLE OF ACT. g L Title and division of this YotooM. 8 1. Title and division of this volume. This act shall be known as The Code of Civil Procedure of California, and Is divided into four parts, as follows: Part I. Of Courts of Justice. II. 01 Civil Actions. IIL Of Special Proceedings of a CiYil Nature. rV. Of Evidence. En. Mar. 11, 1872. This act, how cited: Sec. 19, post. Construction of the codes and of their various sections: See PoL Code, sees. 4478 et seq. THE CODE OF CIVIL PEOCEDUEE OF CALIFORNIA. PRELIMINARY PROVISIONS. J. When this code tabes effect. 3. Not retroactive. 4. Rule of constrnctlon of this code. 5. Provisions similar to existing laws, how construed. 6. Tenure of offices preserved. 7. Construction of repeal as to certain ofHcers. 8. Actions, etc, not aftected by this code. 9. L>tmltatlons shall continue to run. 10. Holldaya. 11. Same. 12. Computation of time, 13. Certain acts not to be doae oq boUdaya. 14. "Seal" defined. IB. Joint authority. 16. Words and phrases. 17. Certain terms used In this code defined. 15. Statutes, etc, Inconsistent with code repealed. 19. This act, how dted, enumerated, etc. 20. Judicial remedies defined. 21. Division of judicial remedies. 22. Action defined. 23. Special proceeding defined. 24. Division of actions. 25. Civil actions arise out ot obligations or Injuries. 26. Obligation defined. 27. Division of injuries. 28. Injuries to property. 29. Injuries to the person. 30. Civil action, by whom prosecuted. 31. Criminal actions. 82. Civil and criminal remedies not merged. 5 2. When this code takes effect. This code takes effect at twelve o'clock noon, on the first day of January, eighteen hundred and seventy-three. En. March 11, 1872. Effect of codes generally: See Pol. Code, sees. 4478 et seq. (24) S PRKUMINARY PROVISIONS. S5 S"" § 3. Not retroactive. No part of It is retroactive, un- less expressly so declared. En. March 11, 1872. CaL nep. Cit 56, 299; 59, 289; 63, 264; 85, 84; 95, 201; 106, 680; 117, 149. EMect on pending proceedings and v^ted rights: See sec. 8, post. Effect of code c - existing statutes: See sec. 18, post. 9 4. Rule of construction of this code. The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. The code establishes the law of this state respecting tSfe sub- jects to which it relates, and its provisions and all pro- ceedings under It are to be liberally construed, with a view to effect its objects and to promote justice. En. March 11, 1872. CaL Rep. Cit 61, 216; 64, 7; 64, 241; 64, 430; 66, 98: 65, 303; 66, 289; G6. 310; 72, 80; 74, 76; 80, 256; 81, 419; 83, 370; 83, 464; 87, 294; 90, 506; 91, 353; 92, 201; 93, 390; 93, 423; 94, 43; 99, 625; 102, 541; 104, 492; 105, 558; 116, 381; 118, 383; 129, 811; 139, 882; 140, 9; 142, 195; 144, 611. Construction of codes with relation to each other, and reconciling conflicts between titles, chapters, and articles: See Pol. Codes, sees. 4480 et seq. Rules for construction of statutes: See post, sec3. 185^, 1859, 1866. S 5. Provisions similar to existing laws, how construed. The provisions of this code, so far as they are substan- tially the same as existing statutes, must be construed fcd continuations thereof, and not as new enactments. En. March 11, 1872. Cal. Rep. Cit. 50, 613; 64, 241. EJffect of codes on existing statutes: See post, sec. IS. § 6. Tenure of offices preserved. All persons who iit the time this code takes effect hold office under any of the acts repealed continue to hold the same according to the tenure thereof, except those offices which are not <'on- tinued by one of the codes adopted at this session of tine legislatura En. Liarch 11, 1872. See next section. §§ 7-10 PEELIMINARY PKOVISIONS. 26 § 7. Construction of repeal as to certain officers. When any office is abolished by the repeal of auy act, and such act is not in substance re-enacted or continued in either of the codes, such office ceases at the time the codes take effect. En. March 11, 1872, Eepeals by implication: See sec. 18, post. § 8. Actions, etc., not affected by this code. No action or proceeding commenced before this code takes effect, and no right accrued, is affected by its provisions, but the proceedings therein must conform to the requirements of this code as far as applicable. En. March 11, 1872. Cal. Eep. Cit. 47, 59; 95, 202. Similar provision in Civil Code, sec. 6; see also repealing clause at the end of this code. § 9. Limitations shall continne to run. When a limita- tion or period of time prescribed in any existing statute for acquiring a right or barring a remedy, or for any other purpose, has begun to run before this code goes into ef- fect, and the same or any limitation is prescribed In thl8 code, the time which has already run shall be deemed part of the time prescribed as such limitation by this code. En. March 11, 1872. Ara'd. 1873-4, 279. Cal. Rep. Clt. oO 613, 63, 265. Existing actions not affected: See post, sec. 36L Limitation of actions: See post, sees. 312 et seq. § 10. Holidays. Holidays within the meaning of this code are evRry Sunday, the first day of January, the twenty- second day of February, the thirtieth day of May, the fourth day of July, the ninth day of September, the first Monday In September, the twenty-fifth day of December, every day on which an election is held throughout the state, and every day appointed by the President of Lue United States, or by the governor of this state, for a public fast, thankFrglvine;, or holiday. If the first day of January, the twenty-second day of February, the thir- tieth day of May, the fourth day of July, the ninth day of September, or the twenty-fifth day of December fall 27 PRELIMINART PROVISIONS. S8 U-" upon a Sunday, the Monday following Is a holiday. En. March 11, 1872. Am'd. 1880, 59; 18S&, 46; 1893, 186; 18y7, 15. Oal. Rep. Clt. 65, 621; 71. 465. Nonjudicial days: See post, sec. 134. Last day falling on holiday: See post, sec. 18. § 11. Same. If the first day of January, the twenty- second day of February, the fourth day of July, or the twenty-fifth day of December, falls upon a Sunday, the Monday following is a holiday. En. Marcii 11, 1872. Am'd. 1873-4, 280. Cal. Rep. Cit 68, 847; 145, 677. Last day falling on holiday: See post, sec. 18. § 12. Computation of time. The time In which any act provided by law Is to be done is computed by excluding the first day and Including the last, unless the last day is a holiday, and then it is also excluded. En. March 11, 1872. Cal. Rep. Cit 51,516; 61,832; 61,506; 63,347; 63.420; 63. 421; 71. 4C5; 77, 812; 82, 217; 86, 126; 104, 522 J 105, 182; 112, 610; 122, 401; 124, 95; 131, 594; 181, 685; 182, 593; 136, 4; 136, 5. Time, how computed, and year, week, and day defined; Pol. Code, sees. 8255 et seq. § 13. Certain acts not to be done on holidays. When- ever any act of a secular nature, other than a work of necessity or mercy, is appointed by law or contract to be performed upon a particular day, which day falls upon a holiday, such act may be performed upon the next business day. with the same effect as if it had been performed upon the day appointed. En. March 11. 1872. Cal. Rep. Clt. 71, 465; 110, 551; 121, 100; 136, 193. § 14. " Seal " defined. When the seal of a court, public officer, or person, is required by law to be affixed to any paper, the word "seal" Includes an impression of such seal upon the paper alone, as well as upon wax or a wafer af- fixed thereto. En. March 11, 1872. • Seals: See post, sees. 147-153, 1929-1934. Distinction between sealed and unsealed InstnunentB abolished by Civil Code. sec. 1629. §§ 15-17 PRELIMINARY PROVISIONS. Z8 § 15. Joint authority. Words giving a joint authority to three or more public officers or other persons are con- strued as giving such authority to a majority of them, un- less it is otherwise expressed in the act giving the au- thority. En. March 11, 1872. Cal. Rep. Clt. 63, 258. § 16. Words and phrases. Words and phrases are con- strued according to the context and the approved usage of the language; but technical words and phrases, and such others as have acquired a peculiar and appropriate mean- ing in law, or are defined in the succeeding section, are to be construed according to such peculiar and appropriate meaning or definition. En. March 11, 1872. Cal. Rep. Clt 92, 245; 130, 577; 131, 293; 146, 783. S 17. Certain terms used In this code defined. Words used in this code In the present tense include the future as well as the present; words used in the masculine gen- der include the feminine and neuter; the singular num- ber Includes the plural, and the plural the singular; the word "person" Includes a corporation as well as a natural person; the word "county" Includes "city and county"; writing Includes printing and typewriting; oath Includes affirmation or declaration; and every mode of oral state- ment, under oath or affirmation, Is embraced by the term "testify," and every written one In the term "depose"; signature or subscription Includes mark, when the person cannot write, hia name being written near It by a person who writes his own name as a witness; provided, that when a signature Is by mark it must. In order that the same may be acknowledged or may serve as the signature to any sworn statement, be witnessed by two persons who must subscribe their own names as witness thereto. The following words have In this code the signification attached to them In this section, unless otherwise apparent from the context: 1. The word "propertT" Includes both real and personal property; 2. The words "real property" are coextensive wltn lands, tenements and hereditaments; 29 PRELIMINARY PROVISIONS. 3. The words "personal property" include moucy, goodis, chattp's, things in jxction, and evidences of debt; 4. The word "month" means a calendar month, unless otherwise expressed; 5. The word "will" includes codicil; 6. The word "writ" signifies an order or precept in writ- ing, issued in the name of the people, or of a court ox judicial officer; and the word "process" a writ or summons issued in the course of judicial proceedings; 7. The word "state," when applied to the different parts of the United States, includes the District of Columbia and the territories; and the words "United States" may in- clude the district and territories; 8. The word "section" whenever hereinafter employed, refers to a section of this code, unless some other code or statute is expressly mentioned, 9. The word ' ' affinity ' ' when applied to the marriage re- lation, signifies the connection existing in consequence of marringc, between eacli of the married persons and the blood relatives of the other. En. March 11, 1872. Am'd. 1873-4, 280; 1903, 134. Cal. Eep. Cit. 54, 178; 66, 289; 121, 586; 135, 574; 136, 674. Subd. 2—142, 539; 146, 122. Subd. 3—131, 39; 142, 539. Prac. Act, sec. 647. En. April 29, 1851. Notice defined: See Pol. Code, sec. 4175. Process defined: See Pol. Code, see. 4175. Words used in boundaries are defined in sections 3903 to 3907 of the Political Code. § 18. Statutes, etc., inconsistent with code repealed. No statute, law, or rule is continued in force, because it is con- sistent with the provisions of this code 07i the same sub- ject; but in all cases provided for by this code, all statutes, laws, and rules heretofore in force in this state, whether consistent or not with the provisions of this code, unless expressly continued in force hj it, are repealed and abrogated. This repeal or abrogation does not revive any former law heretofore repealed, nor docs it affect any right already existing or accrued, or any action or proceeding already taken, except as in this code provided; nor does it §§ 19-23 PRELIMINARY PROVISIONS. 30 affect any private statute not expressly repealed. En. March 11, 1872. Cal. Eep. Cit. 47, 59; 49, 597; 55, 95; 63, 580; 64, 8; 64, 234; 64, 243; 64, 258; 65, 303; 73, 269; 80, 495; 93, 424. Effect of code on prior statutes: See ante, sec. 8; also re- pealing clause at the end of this code. Limitations, effect of code on: See ante, sec. 9. Eetroactive effect: See sec. 3, ante. Statutes continued in force: See Pol. Code, sees. 18, 19. Vested rights: See sec. 8, ante. § 19. This act, how cited, enumerated, etc. This act, whenever cited, enumerated, referred to, or amended, may be designated simply as the "Code of Civil Procedure," adding, when necessary, the number of the section. En. March 11, 1872. § 20. Judicial remedies defined. Judicial remedies are such as are administered by the courts of justice, or by judicial officers empowered for that purpose by the consti- tution and statutes of this state. En. March 11, 1872. Cal. Eep. Cit. 71, 397; 135, 14. § 21. Division of judicial remedies. The remedies are divided into two classes: 1. Actions; and, 2. Special proceedings. En. March 11, 1872. Cal. Eep. Cit. 118, 661; 118, 663; 135, 14. § 22. Action defined. An action is an ordinary proceed- ing in a court of justice, by which one party prosecutes another, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. En. March 11, 1872. Cal. Eep. Cit. 72, 339; 73, 4.55; 88, 379; 89, 106; 99, 170; 117, 387; 118, 341; 118, 661; 118, 662; 118, 663; 135, 14; 138, 581. § 23. Special proceeding defined, , Every other remedy is a special proceeding. En. March 11, 1872. Cal. Eep. Cit. 88, 379; 89. 106; 92, 248; 117, 387; 118, 661; 118, 662; 118, 663; 127, 561; 135, 14; 141, 98. H PREIJMINARY PROVISIONS. 5§ L't 3U Special proceedings: See sees. 52, 76, 1022, and part three of this code generally. Special proceedings of a civil nature: See post, part three, sees. 10G3 et seq. § 24. Division of actions. Actions are of two kinds: 1. Civil; and, 2. Criminal. En. March 11, 1872. Civil action, form of: See sec. 307, post. Criminal action: See sec. 31, post. § 25. Civil actions arise out of obligations or Injuries. A civil action arises out of: 1. An obligation; 2. An injury. En. March 11, 1872. Cal. Rep. Cit. 49, 46G; 99, 170; 118, 341; 139, 405. § 26. Obligation defined. An obligation is a legal duty, by which one ])erson is bound to do or not to do a certain thing, and arises from: 1. Contract; or, 2. Operation of law. En. March 11, 1872. Am'd. 1873-4, 281. Cal. Rep. Cit. 99, 170; 139, 405. Obligation, what: See Civ. Code, sees. 1427, 1428. § 27. Division of injuries. An injury is of two kinds: 1. To the person; and, 2. To property. En. March 11, 1872. § 28. Injuries to property. An injury to property con- sists in depriving its owner of the benefit of it, which is done by taking, withholding, deteriorating or destroying it. En. March 11, 1872. § 29. Injuries to the person. Every other injury is an injury to the person. En. March 11, 1872. § 30. Civil action, by whom prosecuted. A civil action is prosecuted by one party against anotlier for the en- 5 § 31, 32 PRELIMIXARY PROVISIONS. S2 forcement or protection of a right, or the redress or pre- vention of a wrong. En. March 11, 1872. Cal. Rep. Cit 104, 13; 103, 655. Forms of action: See post, sec. 307. § 31. Criminal actions. The Penal Code defines and provides for the P'rosecution of a criminal action. En. March 11, 1872. Criminal action defined: See Pen. Code, sec. 683. § 32. Civil and criminal remedies not merged. When the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other. En. March 11, 1872. PART I. OF COURTS OF JUSTICE. TITLE I. ORGANIZATION AND JURISDICTION. Chapter I. Courts of Justice in General, §§ 33, 34. II. Court of Impeachment, §§ 36-89, III. Supreme Court, §§ 40-57. IV. Superior Courts, §§ 65-79. V. Justices' Courts, §§ 85-115. VI. Police Courts, § 121. VII, General Provisions Respecting Courts of Jus- tice, §§ 124-153. [Part I, §§ 83-304, amended and In effect April 1, 18i>U, Amendments 1880, 21 et se^.J CHAPTER I. COURTS OF justice: in genkrau § 33. The several courts of this state. § 34. Courts of record. § 33. The several courts of this state. The following are the courts of justice of this state: 1. The court of impeachments; 2. The supreme court; 8. The superior courts; 4. The justices' courts; B. The police courts and such other inferior courts as the legislature may establish in any incorporated city: or town, or city and county. En. March 11, 1872. Am'd. 1880, 21. Judicial department. See Const. Cal., arts. 3, 8. For suba. 5, see Const. Cal. art. 6, sec. 13. Jurisdiction of the above courts is considered, post, in the various) chapters treating thereof. Code Civ, Proo.— 8. §§ 34-39 COURT OF IMPEACHMENT. 34 Court of impeachment: See post, sees. 3G et seq. Supreme coun: See post, sees. 40 et seq. Superior courts: See post, sees. 65 et seq. Justices' courts: See post, sees. 85 et seq. Police courts: See post, sec. 121. § 34. Courts of record. The courts enumerated in the first three subdivisions o£ the last preceding section are courts of record. En. March 11, 1872. Am'd. 1880. 21. Courts of record: See Const. Cal., art. 6, sees. 12. § 35. En. March 11, 1872. Rep. 1880, 21. CHAPTER II. COURT OF IMPEACHMENT. 8 86. Members of the court. 8 37. Jurisdiction. 8 38. Officers of the court. § 39. Trial of Impeachments provided for In the Penal Code. fi 36. Members of the court. The court of impeach- ment is the senate; when sitting as such court, the sena- tors shall be upon oath; and at least two-thirds of the members elected shall be necessary to constitute a quorum. En. March 11, 1872. Am'd. 1880, 22. Cal. Rep. Clt. 107, 118. § 37. Jurisdiction. The court has jurisdiction to try Impeachments, when presented by the assembly, of the governor, lieutenant-governor, secretary of state, con- troller, treasurer, attorney-general, surveyor-general, chief justice of the supreme court, associate justices of the su- preme court, and Judges of the superior courts for any misdemeanor In office. En. March 11, 1872. Am'd. 18«0. 22. Jurisdiction: See Const. Cal., art. 4, sec. 18. § 38. Officers of the court. The officers of the senate are the officers of the court. En. Mar. 11, 1872. Am'd. 1880, 22. § 39. Trial of Impeachments provided for In the Penal Code. Proceedings on the trial of Impeachments are pro- vided for In the Penal Code. En. Stats. 1880, 22. Proceedings for removal: See Pen. Code, sees. 737 et seq. SUPREME COURT. | <0 CHAPTER III. SUPREME COURT. 40. Justices, elections, and terms of officts. 41. Computation of years of office. 42. Vacancies. 43. Departments. . 44. Apportionment of business. 45. Court In bank. 46. Absence or disability of chief Justice. 47. Sessions. 48. Adjournments. 49. Decisions In writing. BO. Jurisdiction of two klnxla. 51. Original Jurisdiction. 8 52. Appellate Jurisdiction. § 53. Powers In appealed cases. 8 54. Concurrence necessary to transact business. 8 55. Transfer of books, papers, and actions, b 56. Remittiturs In transferred cases. § 57. Appeals In probate proceedings and contested election cases. § 40. Justices, elections, and terms of office. Tlie su- preme court shall consist of a chief justice and six associate justices, who shall be elected by the qualified electors of the state at large, at the general state elections next preceding the expiration of the terms of office of their predecessors respectively, and hold their offices for the term of twelve years from and after the first Monday after the first day of January next succeeding their election; provided, that of the justices elected at the general state election of eighteen hundred and seventy-nine, the chief justice shall go out of office at the end of eleven years and the six associate justices shall have so classified, or shall so classify themselves, by lot, that two of them shall go out of office at the end of three years, two of them at the end of seven years, and two of them at the end of eleven years, from the first Monday after the first day of January, eighteen hundred and eighty; and an entry of such classi- fication shall have been or shall be made in the minutes of the court In bank, signed by them, and a duplicate thereof filed in the office of the secretary of state. En. March 11, 1872. Am'd. 1880, 22. Supreme court: See Const. Cal., art. 6, sees. 2, 8. Eligibility: See post, sec. 156. f§ 41-43 SUPREME COURT. 'i« Jurisdiction of supreme court: See post, sees. 50-53. Acts relating to supreme court commission: See poet, Appendix, Courts. § 41. Computation of years of office. The years during wliicli a justice of the supreme court is to hold office are to be computed respectively from and including the first Monday after the first day of January of any one year to and excluding the first Monday after the first day of Jan- uary of the next succeeding year. En. March 11, 1872. Am'd. 1880, 23. Term, when com^menced: See Const. Cal., art. 6, sec. 3. § 42. Vacancies. If a vacancy occur In the office of a justice of the supreme court, the governor shall apppoint au eligible person to hold the office until the election and qualification of a justice to fill the vacancy, which election shall take place at the next succeeding general election; and the justice so elected shall hold the office for the re- mainder of the unexpired term of his predecessor. En. March 11, 1872. Am'd. 1880, 23. Vacancy in office: See Const. Cal., art. 6, sec. 3. Vacancy See the subject generally, Pol. Code, sees. 995 et seq. Absence or inability of chief Justice to act: See post, sec. 46. Vacancy In office of ju-dge does not affect pending pro- ceedings: See post, sec. 184. § 43. Departments. There shall be two departments of the supreme court, denominated respectively department one and department two. The chief justice shall assign three of the associate justices to each department, and such assignment may be changed by him from time to time; provided, that the associate justices shall be compe- tent to sit in either department, and may Interchange with one another by agreement among themselves, or if no such agreement be made as ordered by the chief justice. The chief justice may sit in either department, and shall pre- side when so sitting; but the justices assigned to each de- partment shall select one of their number as presiding Justice. Each of the departments shall have the power to 37 SUPREirE COURT. g; 44. 4.-> hear and determine causes and all questions arising tliere- in, subject to the provisions in relation to the court in banl{. The presence of three Justices shall be necessary to transact any business In either of the departments, except such as may be done at chambers; but one or more of the justices may adjourn from time to time with the same effect as If all were present, and the concurrence of three justices shall be necessary to pronounce a judgment; pro- vided, that if ihree do not concur, the cause may be re- heard In the same department, or transmitted to the other department, or to the court In bank. En. March 11, 1872. AmU 1878-4, 281; 1880, 23. Cal. Rep. Clt. 104, 135. Departments: See Const. Cal., art. 6, seo. 2. § 44. Apportionment of business. The chief Justice Bhall apportion the business to the departments, and may, in his discretion, order any cause pending before the court to be heard and decided by the court in bank. The order may be made before or after judgment pronounced by a department; but when a cause has been allotted to one of the departments and a judgment pronounced therein, the order must be made withfn thirty days after such judg- ment, and concurred in by two associate Justices; and if so made, it shall have the effect to vacate and set aside the judgment. Any four justices may, either before or after Judgment by a department, order a cause to be heard in bank. If the order be not made within the time above limited, the judgment shall be final; provided that no Judgment by a department shall become final until the expiration of the period of thirty days aforesaid, unless approved by the chief justice in writing, with the con- currence of two associate justices. En. March 11 1872 Am'd. 1880, 23. Similar provision in constitution: See Const., art. 6, sec. 2. § 45. Court in bank. The chief justice, or any four Justices, may convene the court in bank at any time, and the chief justice shall be the presiding justice of the court when so convened. The presence of four justices shall ba necessary to transact any business, and the concurrence 5 5 46, 17 SUPREME COURT. S8 of four justices present at the argument shall be necessary to pronounce a judgment in the court in bank; provided, that if four justices so present do not concur in a judg- ment, then all the justices qualified to sit in the cause shall hear the argument, but to render a judgment a concurrence of four justices shall be necessary; and every judgment of the court in bank shall be final, except in cases in which no previous judgment has been rendered In one of the de- partments, and in such cases the judgment of the court in bank shall be final, unless within thirty days after such judgment an order be made in writing, signed by five justices, granting a rehearing. En. March 11, 1871!. Am'd. 1880, 24. Cal. Rep. Clt. 72, 540; 81, 460; 81, 466; 81, 470; 81, 472; 81, 475; 81, 477; 81, 480. Const. Cal., art. 6, sec. 2. § 46. Absence or disability of chief justice. In case of the absence of the chief justice from the place at which the court in bank is held, or his inability to act, the asso- ciate justices shall select one of iheir own number to per- form the duties and exercise the powers of the chief jus- tice during such absence or inability to act. Em. March 11, 1872. Am'd. 1880, 24. Const. Cal., art 6, sec. 2. S 47. Sessions. The supreme court shall always be open for the transaction of business, it shall hold regular session for the hearing of causes, either in bank, or in one or both of its departments, at the capital of the state, commencing on the first Mondays of May and second Mon- days of November; at the city and county of San Francisco, commencing on the second Mondays of January and third Mondays of July; and at the city of Los Angeles, com- mencing on the first Mondays of April and second Mondays of October; and special sessions at either of the above- named places at such other times as may be prescribed by the justices thereof. The justices and officers of the su- preme court shall be allowed their actual traveling ex- penses in going to and from their respective places of residence upon the business of the court, or to attend Ita eessions. If proper rooms in which to hold the court, and for the accommodation of the officers thereof, are not pro- S9 SUPREME COURT. {} 48-BO vided by the state, together with attendants, furniture, fuel, lights and stationery, suitable and sufficient for the transaction of business, the court, or any three justices thereof, may direct the clerk of the supreme court to pro- vide such rooms, attendants, furniture, fuel, lights, and stationery; and the expenses thereof, certified by any three Justices to be correct, shall be paid out of the state treas- ury, for which expenses, and to defray the traveling ex- penses of the justices and officers of the supreme court above mentioned, a sufficient sum shall be annually ap- propriated out of any funds in the state treasury not otherwise appropriated. The moneys so appropriated shall be subject to the order of the clerk of the supreme court, and be by him disbursed on proper vouchers, and the same shall be accounted for by him In annual settle- ments with the controller of state on the first Monday of December of each year. En. March 11, 1872. Am'd. 1880, 24. Cal. Rep. Clt. 74, 606; 74. 607. Always open: Const. Cal., art 6, seo. 2, and sec. 184, post. § 48. Adjournments. Adjournments from day to day or from time to time, are to be construed as recesses in the sessions, and shall not prevent the court, or either of its departments, from sitting at any time. En. March 11, 1872. Am'd. 1880, 25. Const. Cal., art. 6, sec. 2. Terms of court: This section, with section 74, post, does away with the terms of courts. See, also, post, sec- tions 88 and 104 as to justices' courts. § 49. Decisions in writing. In the determination of causes, all decisions of the supreme court in bank, or in departments, shall be given In wriUng, and the grounds of the decision shall be stated. En. March 11, 1872. Am'd. 1877-78, 22; 1880, 25. Const. Cal., art. 6, sec. 2. § 50. Jurisdiction of two kinds. The jurisdiction of the supreme court is of two kinds: 1. Original; anvi, 2. Appellate. En. March 11, 1872. Am'd. 1873-4, 395; 1877-8. 22; 1880, 25. See subsequent sections of this chapter. ., ^, ,„ SUPREME COURT. 4„ 8 51. Original jurisdiction. In the exercise of its orig- inal jurisdiction tlie supreme court shall have power to issue writs of mandamus, certiorari, prohibition, and ha- beas corpus; and it shall also have power to issue all other writs necessary and proper to the complete exercise of its appellate jurisdiction. En. 1877-8, 22. Am'd. 1880, 25. Cal. Rep. Cit. 81, 616. Const. Cal., art. 6, sec. 4. Mandamus: Post, sees. 54, 76, 165, 1084 et seq., 1108-1110. Certiorari: Post, sees. 54, 76, 165, 1067 et seq., 1108-1110. Prohibition: Post, sees. 54, 76, 165, 1102 et seq., 1108-1110. Habeas corpus: See Const, art. 6, sec. 4; also, post, sees. 54, 76, 165; generally. Pen. Code, sees. 1473 et seq. Injunction: Post, sees. 54, 76, 165, 356, 525 et seq., 745, 1341. Scire facias abolished: Post, sec. 802. Quo warranto: Post, sees. 76, 803-810. Writ: Defined, ante, sec. 17; seal: Post, sec. 153; issu- ance: Post, sec. 54; service by telegraph: Post, sec. 1017. Powers of single justice to issue writs: See post, sec. 54. Ne exeat: See post, sees. 478 et seq. § 52. Appellate Jurisdiction. The supreme court shall have appellate jurisdiction: 1. In all cases in equity, except such as arise in justices' courts. 2. In all cases at law which Involve the title or posses-, Bion of real estate, or the legality of any tax, impost, as- Bessment, toll or municipal fine, or in which the demand, exclusive of Interest, or the value of the property m con- troversy, amounts to three hundred dollars. 3. In all cases of forcible entry and detainer, proceedings In insolvency, actions to prevent or. abate a nuisance, and in all such probate matters as may be provided by law. 4. In all special proceedings. 5. In all criminal cases prosecuted by indictment or information, in a court of record, on questions of law alone. En. Stats. 1880, 25. Cal. Rep. Cit. 60, 115; 60, 654; 67, 212; 118, 485; 134, 612. Appellate Jurisdiction: Const. Cal., art. 6, sec. 4. Appeals In general: Sees. 936 et seq. Appeals to supreme court: Sees. 963 et seq. 41 SUPREME COURT. 85 BS-M § 53. Powers in appealed cases. The supreme court may affirm, reverse, or modify any .iudgmeat or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further pro- ceedings to be had. The decision of the court shall be given in writing, and in giving its decision, if a new trial be granted, the court shall pass upon and determine all the quesiions of law involved in the case, presented upon such appeal, and necessary to the final determination of the case. Its judgment in appealed cases shall be remitted to the court from which the appeal was taken. En. atats. 1880, 25. Oal. Rep. CIt. 60, 471; 81, 465; 118, 469; 182, 285. Errors and defects are to be disregarded: Post, sec. 475. Records, though not conclusive, are presumed correctly to determine the rights of the parties: Sec 1963, subd. 17. Costs on appeal: Post, sec. 1027. Remittitur: Post, sec. 958. § 54. Concurrence necessary to transact business. The concurrence of three justices of the supreme court is necessary for the issuance of any writ, or the transac- tion of any business, except such as can be done at chambers; provided, that each of the justices shall have power to issue writs of habeas corpus to any part of the state upon petition by or on behalf of any person held In actual custody, and may make such writs returnable be- fore himself or the supreme court, or any department, or judge thereof, or before any superior court in the state or any judge thereof. En. March 11, 1872. Am'd. 1880, 25. See Const. Cal., art. 6, sec. 2. Business at chambers: Post, sec. 165. Habeas corpus: See U. S. Const., art 8, Amdts., and Const. Cal., art. 6, sec. 4; also, post, sees. 76, 165; gen- erally, Pen. Code, sees. 1268 et seq., 1473 et seq., 1492 et seq. § 55, Transfer of books, papers, and actions. All records, books, papers, causes, actions, proceedings, and appeals lodged, deposited, or pending in the supreme court abolished by the constitution, are transferred to the su- preme court herein provided for, which has the same power §§ J6-M gJFREME COURT. M and juriEdiction over them as if they had been in the first Instance lodged, deposited, filed, or commenced therein, or, in cases of appeal, appealed thereto. En. March 11, 1872. Am'd. 1880, 25. Const. Cal., art 22, sec. 8. § 56. Remittiturs In transferred cases. In all cases of appeal transferred to the supreme court, its judgments shall be remitte'd to the superior courts of the counties, or cities and counties, from which the appeals were taken respectively, with the same force and effect as if said cases had been appealed to the supreme court from such superior courts. En. March 11, 1872. AmU 1880, 26. § 57. Appeals In probate proceedings and contested election esses. Appeals in probate proceedings and con- tested election cases shall be given preference in hearing In the supreme court, and be placed on the calendar in the order of their date of issue, next after cases in which the people of the state are parties. En. March 11, 1872. En. Stats. 1887, 82. Am'd. 1903, G9. Cal. Rep, Cit 45, 243; 47, 605; 49, 467; 134, 612. § 58. En. March 11, 1872. Am'd. 1873-4, 397; 1875-6, 88 Rep. 1880, 21. § 59. En. March 11, 1872. Am'd. 1875-6. 83. Rep. 1880, 21. § 60. En. March 11, 1872. Am'd. 1877-8, 93. Rep. 1880, 21. § 61. En. March 11, 1872. Rep. 1880, 21. Cal. Rep. Clt. 71, 397. § 62. En. March 11, 1872, Rep. 1880, 21. § 63. En. March 11, 1872. Rep. 1880, 21. § 64. En. March 11, 1872. Am'd. 1875-6, 84. Rep. 1880, 21. I SUPERIOR COURTS. J8 I*. 8« CHAPTER IV. SUPERIOR COURTS. 65. Judges and elections. 6G. Superior courts of two or more judges. 67. Superior courts of the city and county of San Francisco. 68. Terms of office. 69. Computation of years of office. 70. Vacancies. 71. Superior courts by judges of other counties. 72. Judges pro tempore. 78. Sessions. 74. Adjournments. 76. Jurisdiction of two kinds. 76. Original jurisdiction. 77. Appellate jurisdiction. 78. Process. 79. Transfer of books, papers, find actions. 6 65. Judges and elections. There shall be In each of a superior court, for each of which one judge, and for the organized counties, or cities and counties, of the state, some of which two or more judges, as hereinafter in sub- sequent sections specially provided, shall be elected by the quallfled electors of the county, or city and county, at Ihe general state elections next preceding the expiration of the terms of office of their predecessors respectively; provided, that in and for the counties of Yuba and Sutter combined, only one superior judge shall be elected, who shall hold the superior courts of both said counties, and In accordance with such rules for the dispatch of business in both said counties as he may adopt. En. March 11, 1872. Am'd. 1880, 26. Number of superior judges: See Const. Cal., art. 6, sec, 6. Jurisdiction of superior courts: See post, sees. 75-78. Acts Increasing and reducing number of judges in various counties: See post, Appendix, Courts. Separate judges for Sutter and Yuba: See Stats. 1897, p. 48. § 66. Superior courts of two or more Judges. In each of the counties of Alameda, Los Angeles, Sacramento, San Joaquin, Santa Clara, and Sonoma, there shall be elected two judges of the superior court; and in each of said counties, and in any county, or city and county, other than the city and county of San Francisco, in which there shall 88 87. 68 SUPERIOR COURTS. •* be more than one judge of the superior court, the judges of such court m&y hold as many sessions of said court at the same time as there are judges thereof, and sh-all apportion the business a,mong themselves as equally as may be. En. March 11, 1872. Am'd. 1880, 26. Number of superior judges: See Const. Cal., art. 6, sees. 6, 7. Acts increasing and reducing number of judges in var- ious counties: See post. Appendix, Courts. § 67. Superior court of the city and county of San Francisco. In the city and county of San Francisco there shall be elected twelve judges of the superior court, any one or more of whom may hold court; and there may be as many sessions of said court at the same time as there are judges thereof. The said judges shall choose from their ov/n number a presiding judge, who may at any tLme be removed and another chosen in his place, by a vote of any seven of them. The presiding judge shall distribute the business of the court among the judges thereof, and prescribe the order of business. The judgments, orders, and proceedings of any session of the superior court, held by any one or more of the judges of said court, shall be equally effective as if all the judges of said court presided at such session. En. March 11, 1872. Am'd. 1873-4, 398: 1880, 26, Number of superior judges: See Const. Cal., art. 6, sec. 6. Process: Post, sec. 78. Act allowing superior judges of San Francisco to ap- point secretary: See post, Appendix, Courts. § 68. Terms of office. The term of office of Judges of the superior court shall be six years from and after the first Monday of January next succeeding their election; provided, that the twelve judges of the superior court elected In the city and county of San Francisco at the general state election of eighteen hundred and seventy- nine shall have so classified, or shall so classify themselves, by lot, that four of them shall go out of office at the end of one year, four of them at the end of three years, and four of them at the end of five years from the first Mon- day of January, eighteen hundred and eighty; and the entry of such classiflcatiou shall have been, or shall be, a BXIPKRIOR COURTS. g{ dS-H made In the minutes of the court, signed by them, and a duplicate thereof filed in the office of the secretary of state; and provided further, that all the other superior judges elected at the general state election of eighteen hundred and seventy-nine shall go out of office at the end of five years from the first Monday of January, eighteen hundred end eighty. En. March 11, 1872, Am'd. 1875-6, 84; 1880, 27. Term of Oflice: See Oonst. Cal., art. 6, sec. 6. § 69. Computation of years of office. The years during ■which a judge of a superior court is to hold office are to be computed respectively from and Including the first Monday of January of any one year to and excluding the first Monday of January of the next succeeding year. En. March 11, 1872. Am'd. 1880, 27. Cal. Rep. Cit. 99, 44. Computation of time: See Const. Cal., art. 6, sec. 6. See Sec. 41, ante. § 70. Vacancies. If a vacancy occur In the office of judge of a superior court, the governor shall appoint an eligible person to hold the olflce until the election and Qualification of a judge to fill the vacancy, which election shall take place at the next succeeding general election, and Vie judge so elected shall hold office for the remainder of the unexpired term. En. March 11, 1872. Am'd. 18*^-4, 899; 1880, 27. Vacancy filling: See Const. Cal., art. 6, sec. 6. See sec. 42, ante. Vacancies in office, and the mode of supplying them: See Pol. Code, sees. 995 et seq. Vacancy does not affect pending proceedings: See post, sec. 184. § 71. Superior courts by Judges of other counties. A judge of any superior court may hold the superior court in uny county, at the request of the judge or judges of the superior court thereof, and upon the request of the gov- ernor, It shall be his duty to do so; and in either case the judge holding the court shall have the same power as a judge thereof. En. March 11, 1872. Am'd. 1880, 27. 0»1. Rep. Cit. 56, 829; 75, 221; 87, 897; 97. 177; 126, 620. §§ 72, 73 SUPERIOR COURTS. 46 Sitting for another judge: See Const. Gal., art. 6, sec. 8.' See post, sec. 1 GO. § 72. Judges pro tempore. Any cause In a superior court may be tried by a judge pro tempore, wiio must be a member of tlie bar admitted to practice before tiie supreme court, agreed upon in writing by the parties liti- gant, or their attorneys of record, approved by the court, and sworn to try the cause; and his action in the trial of such cause shall have the same eiSect as if he were a judge of Buch court. A judge pro tempore shall, before entering upon his duties in any cause, take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm, as the case may be) that I will support the constitution of the United States E.nd the constitution of the state of California, and that I will faithfully discharge the duties of the oflice of judge pro tempore In the cause wherein is plaintiff, and is defendant, accord- ing to the best of my ability." En. March 11, 1872. Am'd. 1880, 27. Judge pro tempore: Const. Cal., art. 6, sec. 8. Superior judge must be admitted before supreme court: See post, sec. 157. § 73. Sessions. The superior court shall be always open (legal holidays and non-judicial da.rs excepted) and they shall hold their session at the county seats of the several counties, or cities and counties, respectively. They shall hold regular sessions, commencin'g on the first Mon- days of January, April, July, and (>cto^e^, and special ses- sions at such other times as may be prescribed by the judge or judges thereof; provided, that in the city .^-lJ county of San FYancisco the presiding judge shall pre- scribe the times of holding such special sessions. En. March 11, 1872. Am'd. 1880, 27. Cal. Rep. Cit. 69, 544; 119, 61G; 142, 500. Duties (l superior judges generally: See Pol. Code. Bdc. 4134. Always open: See Const. Cal., art. G, sec. 5; post, sees. 104, 134. HolMays, etc.: See ante, sec. 10; post, sees. 134, 135. 47 SUPERIOR COURTS. 85 74-76 § 74. Adjournments. Arljournments from daj^ to day, or from time to time, are to be construed as recesses in the sessions, and shall not prevent the court from sitting at any time. En. March 11, 1872. Am'd. 1880, 28. Cal. Rep. Cit. 69. 544; 69, 545; 119, 616; 142, 500. Adjournments from time to time mere recesses In the sessions: See ante, sec. 48. § 75. Jurisdiction of two kinds. The Jurisdiction of the superior courts is; of two kinds: 1. Original; and, 2. Appellate. En. March 11, 1872. Am'd. 1880, 28. § 76. Original jurisdiction. The superior courts shall have original jurisdiction: 1. In all cases in equity. 2. In all civil actions in which the subject of litigation is not capable of pecuniary estimation. 8. In all cases at law which involve the title or posses- sion of real property, or the legality of any tax, impo"st, assessment, toll, or municipal fine, and in all other cases in which the demand, exclusive of interest or the value of the property in controversy, ajnounta to tliree hundred dollars. 4. Of a/Ctions of forcible entry and detainer, of proceed- ings in Insolvency, of actions to prevent or abate a nui- sance, of all matters of probate, of divorce, and for annul- ment of marriage, and of all such special cases and pro- ceedings as are not otherwise provided for. 5. In all criminal cases amounting to felony, and cases of misdemeanors not otherwise provided for. Said courts shall have the power of naturalization, and to issue papers therefor. Said courts and their Judges, or any of them, shall have power to issue writs of mandamus, certiorari, prohibition, quo warranto, and of habeas corpus on petition by or on behalf of any person In actual custody. In their respective counties. Injunctions and writs of prohibition may be issued and served on legal holidays and nonjudicial days. En. March 11, 1872. Am'd. 1873-4, 281; 1880, 28. Cal. Rep. Cit. 54, 150; 69, 557; 69, 559; 71, 88; 88, 473; 84, 120; 87, 232; 138, 164. Subd. 3—86, 46L §§ 77-7» SUPERIOR COURTS. ♦« Jurisdiction of superior court: See Const. Cal., art. 6, B6C. 5. Venue of actions: Sees. 392 et seq., post. Nuisance: Sees. 52 ante, 731 post. Act conferring upon superior judges powers of probate, district and county judges: See post. Appendix, Courts. § 77. Appellate Jurisdiction. The superior courts sliall Iiave appellate jurisdiction in sucla cases arising in justices' and other inferior courts in ttieir respective counties as may be prescribed by law. En. March 11, 1872. Am'd. 1880, 28. Cal. Rep. Cit 186, 636. Appellate jurisdiction: See Const. Cal., art. 8, sec. 5. Appeals to superior court: See post, sees. 974-980. § 78. Process. The process of the superior courts shall extend to all parts of the state; provided, that all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon real estate, shall be commenced in the county in which the real estate, or any part thereof affected by such action or actions, is situated. En. March 11, 1872. Am'd. 1880, 28. Cal. Rep. Cit. 136, 636. Process extends to ail parts of state: See Const. Cal., art. 6, sec. 5. Place of trial: See Const Cal., art. 6, sec. 6; also see. 892, post. § 79. Transfer of boolerson placed in his care. 12. The probation officers and deputy probation ofticers appointed under this section shall serve as such probation officers in all courts having original jurisdiction of crim- inal actions in this state. 13. Snch probation officer and each deputy probation officer shall ha-\'e, as to the person so committed to the care of such probation officer or deputy probation officer, the powers of a peace officer. En. Stats. 1903, 36. Am'd. 1905, 780. GENERAL FUOVISIONS. |§ 133, 134 ARTICLE III. 'judicial days. 8 133. Days on which courts, etc., may be held. § 134. Nonjudicial days. § 135. Appointments on nonjudicial days. § 133. Days on which courts, etc., may be held. Courts of justice may be held and judicial business transacted on any day, except as provided in the next section. En. March 11, 1872. Am'd. 1880, 37. Cal. Rep. Cit. 57, 406; 63, 421; 65, 621; 97, 392; 112, 610; 112, 611. § 134. Nonjudicial days. No court shall be oi)en, nor shall, any judicial business be transacted, on Sunday, on thQfCrst day of January, on the twenty-second day of February, on the thirtieth day of May, on the fourth day of July, on the ninth day of September, on the first Mon- day of September, on the twenty-fifth day of Etecember, on a day upon which an election is held throughout the state, or by the governor of this state, for a public fast, thanksgiviirg, or holiday, except for the following pur- poses: 1. To give, upon their request, instructions to a jury when deliberating on their verdict. 2. To receive a verdict or discharge a jury. 3. For the exercise of the powers of a magistrate in a criminal action, or in a proceeding of a criminal nature. Provided, that the supreme court and the superior courts shall always be open for the transaction of business; and provided further, that injunctions and writs of prohibition may he issued and served on any day. En. March 11, 1872. Am'd. 1830, 38; 1889, 46; 1893, 186; 1897, 15. Cal. Rej). Cit. 57, 406; 63, 421; 65, 621; 112, 610; 112, 611; 138, 219; 147, 777. Holidays* Sec.-3. 10-13, ante. Courts always open: Const. Cal., art. 6, sec. 5; sees. 47, 73, 104, ante. Injunctions and writs of prohibition, issuance of, on nonjudicial days: Ante, sec. 76, subd. 5; and Const. Cal., art. 6, sec. 5. §§ 135-140 GENERAL, PROVISIONS. 70 § 135. Appointments on nonjudicial days. If any day mentioned in the last section happen to be the day ap- pointed for the holding or sitting of a coirt, or to which it is adjourned, it shall be deemed appointed for or ad- journed to the next day. En. March 11, 1872. Am'd. 1880, 38. ARTICLE rV. PROCEEDINGS IN CASE OF ABSENCE OF JUDGB. 8 139. Adjournment for absence of Judge. § 140. Adjournment till next regular session. § 139. Adjournment for absence of judge. If no judge attend on the day appointed for the holding or sitting of a court, or on the day to which it may have been adjourned, before noon, the sheriff or clerk shall adjourn the same until the next day, at 10 o'clock a. m., and if no judge attend on that day, before noon, the sheriff or clerk shall adjourn the same until the following day at the same hour, and so on, from day to -day for one week, unless the judge, by written order, directs it to be adjourned to some day certain, fixed in said order, in which case it shall be so adjourned. En. March 11, 1872. Am'd. 1880, 38. Nonjudicial day: Sees, 134, 135. § 140. Adjournment til! next regular session. If no jud-ge attend for one week, and no written order be made, as provided in the last section, the sheriff or clerk shall adjourn the session until the time appointed for the hold- ing of the next regular session. En. March 11, 1872. Am'd. 1880, 38. Sessions: Ante, sec. 73. GKNERAL PROVISIONS, §§llii44 ARTICLE V. PROVISIONS RESPECTING PLACES OF HOLDING COURTS. 5 142. Change in certain cases of place of holding court. 8 143. Parties to appear at place appointed. § 144. When sheriff to provi'de courtrooms, etc. § 142. Change in certain cases of place of holding court. The judge or judges authorized to hold or preside at a court appointed to be held at a particular place iu a city and county, county, city, or town, may, by an order filed with the city and county or county clerk, and published as he or they may prescribe, direct thai the court be held or continued at any other place in the city and county, county, city or town than that appointed, when war, insurrection, pestilence, or other public calamity, or the danger thereof, or the destiiiction or danger of the building appointed for holding the court, may render it necessary; and may, in the same manner, revoke the order, and in his or their dis- cretion, appoint another pl£,ce in the same city and county, county, city or town, for holding the court. En. March 11, 1872. Am'd. 1880, 38. § 143. Parties to appear at pJace appointed. "Wien the court is held at a place appointed, as provided in the last section, every person lield to appear at the court must appear at the plac€i so appointed. En. March 11, 1872. Am'd. 1880, 39. § 144. When sheriff to provide court-rooms, etc. If suitable rooms for holding the superior courts and the chambers of the judges of said courts be not provided in any city and county, or county, by the supervisors thereof, together with the attendants, furniture, fuel, lights, and stationery sufficient for the transaction of business, the courts, or the judge or judges thereof, may direct the sheriff of the city and county, or county, to provide such rooms, attendants, furniture, fuel, lights, and stationery, and the expenses incurred, certified by the judge or judges to be correct, shall be a charge against the city and county treasury, rnd paid out of the general fund thereof. En. March 11, 1S72. Am'd. 1880, 39. Cal. Rep. Cit. C4, 245; 91, 3G7; 93, 382; 93, 383; 9G, 53. §§ 147-li8 GENERAL, PROVISIONS. ARTICLE VI. SEALS OF COURTS. 8 147. What oourtB shall have seals S 148. Seal of supreme court. 8 149. Seals of superior courts. g 150. Seals of police courts of cities and counties. I 161. Seals, how provided; private seals, when uae\l. 8 152. Clerk of court to keep seal. § 158. Seals of courts, to what documents affixed. § 147. What courts shall have seals. Each of the fol- lowing courts shall have a seal: 1. The supreme court; 2. The superior courts; 3. The police court of every city and county. En. March 11, 1872. Am'd. 1880, 39. Seal of Court — Judicial notice taken of: Post, sec. 1875, Bubd. 4; court commissioner may provide official seal, sec. 259, subd. 5. Seals how made: Ante, sec. 14. Police courts are not courts of record; See ante, sees. 83, 34, and yet have a seal. § 148. Seal of supreme court. The seal used by the supreme court, abolished by the constitution, shall be the seal of the supreme court herein provided for; but the said court may direct the clerk of the supreme court to provide two duplicates of said seal, each of which shall be consid- ered the same as and have the same force and effect as the original. En. March 11, 1872. Am'd. 1880, 39. § 149. Seals of superior courts. The seals of the su- perior courts shall be circular, not less than one and three- fourths Inches in diameter, and having in the center any word, words, or design adopted by the Judges thereof, and the following inscription surrounding the same: "Superior Court, , California," Inserting the name of the county, or city and county; provided, that the seal of any such court, which has been adopted previous to the passage of this act, shall be the seal of such court, until another be adopted. En. March 11, 1872. Am'd. 1880, 39. T8 QffiNERAL PROVISIONS. S§ lW-153 See act of March 31, 1880, validating writs, process and certiflcates issued from superior courts before seal pro- vided: See Stats. 1880, p. 19. § 160. Seals of police courts of cities and counties. The police court of every city and county may use any seal having upon it the inscription, "Police Court, ," (in- serting the name of the city and county). En. March 11, 1872. Am'd. 1880, 39. Cal. Rep. CIt. 135, 352; 135, 358. § 151. Seals, how provided; private seals, when used. Courts which have not the necessary seal provided, or the Judge or Judges thereof, shall request the supervisors of their respective counties or cities and counties, to provide the same, and in case of their failure to do so, may order the sheriff to provide the same, and the expense thereof shall be a charge against the county or city and county treasury, and paid out of the general fund thereof; and until such seal be provided, the clerk of each court may use his private seal, whenever a seal is required. En. March 11, 1872. Am'd. 1880. 39. § 152. Clertc of court to lMMENCINO AC- TIONS. S?5C. When an action Is commenced. i51. Exception, where defendant la out of the state. 8 352. Exceptions aa to persons under disabilities. I 353. Provision where person entitled dies before llmltaUon expiret. 5 354. 1.1 suits by aliens, time of war to be deducted. 8 355. Provision where Judgment has been reversed. 8 356. Provision where action is stayed by Injunction. I 367. Disability must exist when right of action accrued. 6 358. When two or more disabilities exist, etc. S 359. This title not applicable to actions against directors, etc. Lami- tatlons In such cases prescribed. 8 360. Acknowledgment or new promise must bo In writing. § 361. Limitation laws of other states, effect of. § 362. Existing causes of action not affected. I 363. "Action" includes a special proceeding. § 350. When an action is commenced. An action Is commenced, within the meaning of this UUe, when the complaint is filed. En. March 11, 1872. Cal. Rep. Cit. 58, 150; 136, 304. jl 351. Exception, where defendant Is out of the state. If when the cause of action accrues against a person, he Is' out of the state, the action may be commenced within the term herein limited, after his return to the state, and If after the cause of action accrues, he departs from the state the time of his absence is not a part of the time liini-ed for the commencement of the action. En. Marcli 11, 1872. Cal. Rep. Cit 66, 205; 95, 195; 101. 157; 183, 363. g§ 352-356 TIME OF C01frM:ENCING ACTIONS. 128 § 352. Exception as to persons under disabilities. If a person entitled to bring an action, mentioned in cliapter three of this title, be at the time the cause of action ac- crued, either: 1. Within the age of majority; or, 2. Insane; or, 8. Imprisoned on a criminal charge, or In execution un- der the sentence of a criminal court for a term less than for life; or, 4. A married woman, and her husband be a necessary party with her In commencing such action: — The time of such disability is not a part of the time limited for the commencement of the action. En. Maxch 11, 1872. Cal. Rep. Clt. 65, 576. Disabilities stopping running of statute: See ante, sec. 828. § 353. Provision where person entitled dies before limi- tation expires. If a person entitled to bring an action die before the expiration of the time limited for the com- mencement thereof, and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time, and within six months from his death. If a person against whom an action may be brought, die before the expiration of the time limited for the commencement thereof, and the cause of action sur- vive, an action may be commenced against his representa- tives after the expiration of that time, and within one year after the Issuing of letters testamentary or of administra- tion. En. March 11, 1872. Cal. Rep. Cit. 50, 648; 53, 378; 67, 181; 85, 443; 94, 359; 94, 860; 116, 356; 119, 66; 123, 888; 127, 191; 127, 195; 136, 372; 142, 474; 145, 628; 146, 579. Substitution of parties: See post, sec. 385. Survival of actions: See post, sees. 385, 1582, 1584. "Action" Includes a special proceeding of a civil nature: See post, sec. 863. § 354. In suits by aliens, time of war to be deducted. When a person is an alien subject, or citizen of a country at war with the United States, the time of the continuance of the war is not part of the period limited for the commencement of the action. En. March 11, 1872. § 355. Provision whiere judgment has been . reversed. If an action is commenced within the time prescribed 127 TIME OF COMMENCING ACTIONS. $§ 356-360 therefor, and a judgment thereon for the plaintiff be re- versed on appeal, the plaintiff, or if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal. En. Marcli 11, 1872. Cal. Rep. Cit. 137, 530. § 356. Provision where action is stayed by Injunction. When the commencement of an action is stayed by injunc- tion or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action. En. March sec. 328. Cal. Rep. Cit. 54. 235; 61, 600; 63, 122; 66, 532; 89, 392; 127, 192; 141, 100. § 357. Disability must exist when right of action ac- crued. No person can avail himself of a disability, unless It existed when his right of action accrued. En. March 11, 1872. Successive disabilities: See infra, sec 358, and ante, sec. 328. § 358. When two or more disabilities exist, etc. When two or more disabilities coexist at the time the right of action accrues, the limitation does not attach until they are removed. En. March 11, 1872. Cal. Rep. Cit. 68, 352; 77, 372. § 359. This title not applicable to actions against direc- tors, etc Limitations in such cases prescribed. This title does not affect actions against directors or stockholders of a corporation, to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such actions must be brought within three years after the discovery by- the aggrieved party of the facts upon which the penalty or forfeiture attached, or the liability was created. En. March 11, 1872. Cal. Rep. Cit 59, 546; 59, 547; 74, 171; 82, 653; 97, 97; 99, 613; 99, 614; 99, 615; x03, 596; 108, 5; 117, 163; 124, 94; 125, 8; 125, 409; 125, 410; 125, 412; 125, 454; 125, 455; 125, 488; 127, 167; 127, 259; 127, 260; 127. 627; 127, 528; 127, 671; 142, 384; 143, 224; 145, 703; 145, 704; 147, 558. Director's personal liability: See Civ. Code, sec. 309. § 360. Acknowledgment or new promise must be in writing. No acknowledgment or promise is sufficient evi- §§ 361-363 TIME OF COMMENCING ACTIONS. IS dence of a new or continuing contract, by which to take the case out of the operation of this title, unless the same is contained in some writing, signed by the party to be charged thereby. En. March 11, 1872. Cal. Rep. Cit 51, 217; 56, 344; 56, 379; 56, 380; 66. 190; 70, 414; 74. 67; 74, 69; 75. 275; 76, 101; 98, 298; 122. 414; 122, 415; 122, 417; 122, 419; 127, 530; 127, 671; 128, 476; 130, 251; 134, 19; 134. 20; 134, 21; 134, 29; 137, 389; 138, 659; 143. 133. § 361. Limitation laws of other states, effect of. When a cause of action has arisen In another state, or In a for- eign country; and by the laws thereof an action there- on cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be main- tained against him in this state, except in favor of one who has been a citizen of this state, and who has held the cause of action from the time it accrued. En. March 11, 1872. Cal. Rep. Clt 72. 266; 79. 79; 95, 194; 95. 197; 95, 198; 95, 200; 95, 206; 99, 515. Prac Act, sec. 532. En. April 29. 1851. § 362. Existing causes of action not affected. This title does not extend to actions already commenced, nor to cases where the time prescribed in any existing stat- ute, for acquiring a right or barring a remedy has fully run. but the laws now in force are applicable to such ac- tions and cases, and are repealed subject to the provi- sions of this section. En. March 11, 1872. Cal. Rep. Cit 95, 202. Repeal of limitation: See ante, sees. 9, 18. §363. "Action" includes a special proceeding. The word "action," as used in this title. Is to be construed, whenever it is necessary so to do, as including a special proceeding of a civil nature. En. March 11. 1872. Cal. Rep. Cit 55, 588; 95, 202; 99. 614; 117, 6; 118, 661; 118, 662; 141, 98; 145, 47. 129 PAKTIES TO CIVIL ACTIONS. S 367 TITLE III. OF THB PARTIT5S TO CIVIL. ACTIONS. S M7. Action to be In name of party In interest. § 368. Assignment of thing In action not to prejudice defense, § 369. Executor, trust**, etc., may sue without Joining the persons beneficially Interested. § 370. When a married woman Is a party— actions by and against. § 371. Wife may defeiod, when. § 372. Infant to appear by guardian. § 373. Guardian, how appointed. § 374. Unmarried female may sue, for her own seduction. 5 375. Father, etc, may sue, for seduction of daughter, ete. § 378. Father, etc., may sue, for Injury or death of child. 5 377. When representatives may sue for death of one caused by the wrongful act of another. § SIX. Who may be joined as plaintiffs. § 379. Who may be Joined as defendants. 5 389. Parties defendant In an action to determine conflicting clalma to real property. § Kl. Parties holding title under a commo* source, when may join. § S82. Parties In interest, when to be joined. When one or more may sue or defend for the whole. S 883. Plaintiff may cue In one action the different parties to commer- cial paper or Insurance policies. I S84. Tenants In common, etc, may sever In bringing or defending actlona. ( 386. Action, when not to abate by death, marriage, or other disabil- ity. Proceedings In such case. § 388. Another person may be substituted for the defendant. S 387. Intervention, when It takes place and how made. § 388. Associates may be sued by name of assoclatloiu I 389. Court, wh«en to decide controversy or to order other parties to be brought in. I 390. Actions against fire departments. 5 367. Action to b« In name of party In Interest. Every action must be prosecuted in the name of the real party In interest, e.xcept as provided in section three hundred and Bixty-nine of this Code. En. March U, 1872. Am'd. 1880, 63. CJaL Rep. Clt 55, 129; 57. 586; 61, 614; 66, 58; 666, 445; 68, 368; 69, 145; 77, 543; 87, 247; 112, 82; 123, 186; 138, 219. Prac Act, sec. 4. En. April 29, 1851. Am'd, 1854, 50; 1855, 303; 1864, 29. Cal. Rep. Clt 6, 248; 6, 457; 9, 328; 12, 98; 18, 618; 22, 235; 22, 236; 22, 239; 25, 189; 25, 252; 26, 148; 32, 90; 32, 118; 33, 127; 34, 148; 138, 219; 146, 210; 146, 579; 147, 389. Assignees: See post, sec. 368. Association, how may be sued: See infra, sec. 388. Code CivU Proc— 9. 18 363, 369 PAHTTES TO CTTlX. ACTTIOiSra HO Right to sne on contract made for one's benefit: Sea Civ. Code, xc. ir)59. Parties plaintilf, generally. — All persons Interested ma^ be joined: Sees. 378, 382, post. If any refxise, they may be made defendants: Post, sec. 382. 9 368. Assignment of thing In action not to prejudice defense. In the case of an assignment of a thing in ac- tion, the action by the assignee is without prejudice to any setoff or other defense existing at the time of, or before, notice of the assignment; but this section does not apply to a negotiable promissory note or bill of exchange, trans- ferred In good faith and upon good consideration, before maturity. En. March 11, 1872. Cal. Rep. Cit 56, 129; 65, 438; 66, 42; 76. 636; 81, 327; 101, 288; 101, 289; 107, 62; 107. 67; 113, 171; 123, 161; 126. Ill; 132, 584; 133, 47; 133, 685. Prac. Act, sec. 5. En. April 29. 185L CaL Rep. Clt 9, 50; 33. 528; 123, 161. Assignment and survival of causes of action: See post, sees. 1582 et seq. See the subject of negotiable instruments and the rights of parties thereto discussed in the Civil Code, sees. 3086 et seq. Thing in action defined: Civ. Code, sec. 953. § 369. Executor, trustee, etc., may sue without joining the persons beneficially interested. An executor or ad- ministrator, or trustee of an express trust, or a person expressly authorized by stiitute, may sue without joining with him the persons for whose benefit the action is prosecuted. A person with whom, or in whose name, a contract is made for the benefit of another, is a trustee of an express trust, within the meaning of this section. En. March 11, 1872. Cal. Rep. Cit. 57, 586; 57, 587; 66, 446; 68, 420; 71, 598; 74, 375; 75, 127; 75, 250; 77, 542; 80, 31; 83, 486; 87. 247; 89, 605; 91, 504; 98, 497; 100, 509; 110, 575; 114, 388; 119, 576. Prac. Act, sec. 6. En. April 29, 185L Am'd. 1854, 59. Cal. Rep. Cit 1, 174; 3, 321; 25, 29; 28, 543; 32, 117; 34, 138; 85, 445; 142, 145; 146, 210; 147. 311; 147, 390. Executors and administrators, action by, jointly with heirs or devisees, for possession of real estate or quieting 131 PARTIES TO CIVTL ACTIONS. §§ 370-57S title: Sec. 1452. Actions by, alone: Sec. 1581-3. To set aside fraudulent deeds made by deceased: Sec. 1589. § 370. When a married woman is a party — actions by and against Wben a married woman is a party, her hus- band must be joined with her, except: 1. When the action concerns her separate property, or her right or claim to the homestead property, she may sue alone. 2. When the action is between herself and her husband, she may sue or be sued alone. 3. When she is living separate and apart from her hus- band by reason of his desertion of her, or by agreement in writing entered into between them, she may sue or be sued alone. En. March 11, 1872. Am'd. 1873-4, 293. Cal. Rep. Cit. 53, 460; 54, 178; 65, 631; 67, 391; 71, 425; 96, 611; 110, 89; 122, 259; 126, 82; 137, 277; 138, 165, Subd. 1—67, 390; 87, 468; 105, 690; 105, 691; 110, 425; 126, 481; 134, 421; 136, 302. Subd. 3—77, 391; 105, 690; 122, 255. Prac. Act, sec. 7. En. April 29, 1851. Am'd. 1867-8, 550. Cal. Rep. Cit. 3, 87; 15. 311; 19, 129; 26, 443; 29, 83; 31, 335; 32, 342; 36, 450; 36, 451; 36, 453; 42, 412. Contracts of married women generally: See Civ. Code, sec. 158. Sole traders: Post, sees. 1811 et seq. § 371. Wife may defend, when. If a husband and wife • be snei together the wife may defend for her own right, and if the husband neglect to defend, she may defend for his right also. En. March 11, 1872. Prac. Act, sec 8. En. April 29, 1851. Cal. Rep. Cit. 5, 388. § 372. Infant to appear by guardian. When an Infant, or an insane or incompetent person is a party, he must appear either by his general guardian or by a guardian ad litem appointed by the court, in which the action is pend- ing in each case. A guardian ad litem may be appointed in any case, when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to represent the infant, insane or incompetent person in the action or proceeding, notwithstanding he §§ 373. 374 PARTIES TO CTVTL ACTIOire. 13J may have a general guardian and may have app«»areri by Mm. En. March 11, 1872. Am'd. 1873-4, 294; 1880, 63. Cal. Rep. Cit 56, 322; 63, 89; 64, 238; S-l, 593; 66, 361; 74, 55; 75, 599; 87, 532; 89, 637; 94, 56; 103, 390; 111, 271; 120, 697; 133, 418. Prac. Act, sec. 9. En. April 29, 1851. Cal. Rep. Cit. 19, 632; 64, 593. Appointment of guardian ad litem: See next section. Guardian and ward, generally: See post, sees. 1747 et seq.; and Civ. Code, sees. 236 et seq. Insane or incompetent person: Civ. Code, sees. 36, 38-42; guardian or: Post, sees. 1763-1766. Minors and persons of unsound mind, their rights and liabilities: Civ. Code, sees. 33 et seq. § 373. Guardian, how appointed. When a guardian ad litem is appointed by the court, he must be appointed as follows: 1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years, or If under that age, upon the application of a relative or friend of the infant 2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within ten days after the service of the summons, or If under that age, or if he neglect so to apply, then upon the application of a relative or friend of the infant, or of any other party to the action. 3. When an insane or incompetent person is a party to an action or proceeding, upon the application of a relative or friend of such insane or incompetent person, or of any other party to the action of proceeding. EJn. March 11, 1872. Am'd. 1880, 63. CaL Rep. Cit 56, 322; 63, 562; 64, 594; 64, 597; 66, 53; 66, 360; 74, 55; 119, 576; 133, 418. Prac. Act, sec. 10. En. April 29, 1851. Cal. Rep. Cit 19, 632; 64, 594. § 374. Unmarried female may sue, for her own seduc- tion. An unmarried female may prosecute, as plalntiflf, an action for her own seduction, and may recover therein IB PARTIES TO CIVIL ACTIONS. §§ 375^377 Buch damages, pecuniary or exemplary, as are assessed in her favor. En. March 11, 1872. Cal. Rep. Cit. 98, 59. Exemplary damages: See Civ. Code, sec. 3294. Damages for seduction: See Civ. Code, sec. 3339, i 375. Father, etc., may sue, for seduction of daughter, etc. A father, or in case of his death or desertion of his family, the mother may prosecute as plaintiff for the seduction of the daughter, and the guardian for the se- duction of the ward, though the daughter or ward be not living with or in the service of the plaintiff at the time of the seduction or afterward, and there be no loss of ser- vice. En. March 11, 1872. Guardian ad litem: Ante, sec. 372; appointment of: Ante, sec. 373. § 376. Father, etc., may sue, for Injury or death of child. 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 minor child, and a guardian for the injury or death of his ward, when such injury or death is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the injury or death, or if such person be employed, by another person who is responsible for his conduct, also against sucli other person. En. March 11, 1872. Am'd. 1873-4, 294. Cal. Rep. Cit. 50, 613; 56, 389; 56, 393; 56, 394; 62, 336; 76, 241; 95, 520; 95, 521; 115, 390; 139, 622. Prac. Act, sec. 11. En. April 29, 1851. Cal. Rep. Cit. 19, 632; 25, 435; 32, 117; 32, 119; 44, 48. Guardian and ward: Post, sees. 1768-1776, and Civ. Code, Bees. 236-258. § 377. When representatives may sue for death of one caused by the wrongful act of another. When the death of a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against tte person causing the death, or if such person be employed by an- othOT person who is responsible for his conduct then also §§ 378, 379 PARTIES TO CIVIL ACTIONS. 1S4 against such other person. In every action under this and the preceding section, such damages may be given as under all the circumstances of the case may be just. En. March 11, 1872. Am'd. 1873-4, 294. Cal. Rep. Cit. 50, 613; 56, 389; 56, 393; 57, 26; 57, 37; 57, 38; 59, 300; 59, 301; 60, 609; 62, 338; 63, 484; 76, 241; 83, 19; 84, 521; 84, 522; 86, 143; 95, 521; 110, 283; 110, 285; 110, 289; 115, 391; 124, 129; 124, 130; 127, 439; 137, 399; 139, 4S3; 139, 484; 139, 487; 40, 512. § 378. Who may be. joined as plaintiffs. All persons having an interest in the subject of the action and in ob- taining the relief demanded, may be joined as plaintiffs, except as othervrise provided in this title. En. March 11, 1872. Cal. Rep. Cit. 68, 420; 115, 583; 136, 639; 137, 673. Prac. Act, sec. 12. En. April 29, 1851. Cal. Rep. Cit 8, 516. Cotenants: Post, sec. 381. Special partners: Civ. Code, sec. 2492. Other parties, bringing in: Post, sec. 389. Misjoinder and nonjoinder of plaintiffs: Post, sec. 430. § 379. Who may be joined as defendants. 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. And in an action to deter- mine the title or right of possession to real property which, at the time of the commencement of the action, is in the possession of a tenant, the landlord may be joined as a party defendant. En. March 11, 1872. Cal. Rep. Cit. 63, 119; 63, 308; 67, 663; 69, 574; 77, 641; 79, 120; 84, 5; 116, 90; 123, 661; 136, 639; 138, 90. Prac. Act, sec. 13. En. April 29, 1851. Cal. Rep. Cit 1, 174; 9, 270; 22, 205. Joining landlord: Ante, sec. 379; Civ. Code, sec. 1949. Parties to foreclosure: Post, sec. 726. Corporation stockholders: Const. Cal., art. 12, sees 3 4* Civ. Code, sec. 322. ' ' ' Associates, suing by common name: Post, sec. 388. Quieting title, suits: See post, sec. 738. 13S PARTIES TO CIVIL. ACTIONS. 5§ 380-382 , Executors, unqualified, need not be joined: Sec. 1587. Fresh parties, bringing in: Post, sec. 389. Service on one defendant out of several, effect of: Post, sec. 414. State, suits against — Soiits may be brought against the state in such manner and in such courts as shall be di- rected by law: Const. Cal., art. 20, sec. 6. Actions against state, statutes relating to: See post, Appendix, State. § 380. Parties defendant In an action to determine con- flicting claims to real property. In an action brought by a person out of possession of real property, to determine an adverse claim of an interest or estate therein, the person making such adverse claim and persons in possession may be joined as defendants, and if the judgment be for the plaintiff, he may have a writ for the possession of the premises, as against the defendants in the action, against whom the judgment has passed. En. March 11, 1872. Am'd. 1873-4, 295. Cal. Rep. Cit. 66, 269; 80, 465; 83, 172; 90, 343; 94, 466; 118, 36. Actions to quiet title: See post, sec. 738. "Writ of possession: See post, sec. 682. Presh parties, bringing In: See post, sec 389. Nonjoinder, misjoinder of parties: See Sec. 430. § 381. Parties holding title under a common source, when may join. Any two or more persons claiming any estate or interest in lands under a common source of title, whether holding as tenants in common, joint tenants, co- parceners, or in severalty, may unite in an action against any person claiming an adverse estate or interest therein, for the purpose of determining such adverse claim, or if [of] establishing such common source of title, or of de- claring the same to be held in trust, or of removing a cloud upon the same. En, March 11, 1872. Am'd. 1873-4, 295. CaL Rep. Cit 58, 182; 83, 351; 129, 61; 137, 306. Cotenajits may sever: See sec. 384, infra. Ejectment: See sec. 738, post, and sec. 379, supra. Quieting title: See post, sec. 738. Joint tenants: See post, sec. 384. § 382. Parties in interest when to be joined. When one or more may sue or defend the whole. Of the parties § S83 PAETIES TO CTVXL ACTIONS. VSf to the action, those who are united in interest .m>.ist 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 v/hen the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is im- practicable to bring them all before the court, one or more may sue or defend for the benefit of all. En. March 11, 1872. Cal. Rep. Cit 58, 183; 58, 184; 60, 532; 69, 621; 74, 442; 77, 248; 77, 249; 79, 372; 94, 581; 95, 256; 104, 7; 104, 8; 104, 10; 110, 460; 129, 243; 136, 614; 136, 635; 136, 639; 144, 29. Subd. 2—84, 81. Prac. Act, sec 14. En. April 29, 1851, Cal. Rep. Clt. 1, 174; 3, 87; 7, 334; 8, 516; 18, 322; 20. 218. Joinder, misjoinder, nonjoinder: Post, sec 430. Executors, etc, not qualified need not join: Post, sec. 1587. § 383. Plaintiff may sue In one action the different par- ties to commercial paper or Insurance policies. Persons severally liable upon the same obligation or instrument, Including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff; and all or any of them join as plaintiffs in the same action, concerning or affecting the obligation or instrument upon which they are severally liable. Where the same person is insured by two or more insurers separately in respect to the same subject and in- terest, such person, or the payee under the policies, or the assignee of the cause of action, or other successor in inter- est of such assured or payee, may join all or any of such Insurers in a single action for the recovery of a loss under the several policies, and in case of judgment a several judgment must be rendered against each of ssuch insurers according as his liability shall appear. En. March 11, 1872. Am'd. 1897, 19; 1903, 203. Cal. Rep. Cit. 48, 236; 58, 100; 65, 387; 73, 270; 75, 634; 81, 653; 93, 58; 94, 93; 101, 420; 118, 420; 120, 690; 123, 440; 125, 686; 135, 648; 136, 302. Prac. Act, sec. 15. En. April 29, 1851. Cal. Rep. Cit 1, 176; 6, 183; 13, 86; 24, 382; 25, 526. m PARTIES TO CIVIL ACTION'S. 55 384, 385 Judgment for or against one or more of several parties: See post, sees. 414, 578, 579. § 384. Tenants in common, etc., may sever in bringing or defending actions. All persons holding as tenants in common, joint tenants or coparceners, or any number less than all, may jointly or severally commence or defend any civil action or proceeding for the enforcement or protec- tion of the rights of such party. En. March 11, 1872, Cal. Rep. Cit. 61, 262; 80, 630; 91. 598; 110, 425; 136, 635; 137, 526; 139, 562. Co-claimants, united as plaintiffs: Sec. 381. § 385. Action, when not to abate by death, marriage, or other disability. Proceedings in such case. An action or proceeding does not abate by the death or any dissi- bllity of a party, or by the transfer of any Interest there- in, if the cause of action survive or continue. In case of the death or any disability of a party, the court, on mo- tion, may allow the action or proceeding to be continued by or against his representative or successor In Interest. In case of any other transfer of Interest, the action or proceeding 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 or pro- ceeding. En. March 11, 1872. Am'd. 1873-4, 295. Cal. Rep. Cit. 46, 576; 50, 659; 64, 203; 54, 887; 56p 34; 64, 82; 64, 430; 64, 476; 64, 596; 65, 388; - 185, 224; 138, 587; 188, 657; 139, 420; 140, 179; 142, 148; 146, 654. Prac. Act, sec. 16. En. April 29, 1851. Cal. Eep. Cit. 5, 282; 29, 372; 29, 377; 30, 475; 30, 476; 31, 336; 32, 119; 49, 208; 50, 659; 64, 596. If a partj die, judgment against his representative must be that he pay in due course of administration: Post, sec. 1504. Necessity for claiming against estate of deceased: Post, sees. 1493, 1502. Death after verdict or decision and before judgment: See post, sec. 669. Survival of actions: See post, sees. 1582 et seq. §§ 386, 387 PARTIES TO CIVIL ACTIONS. 1% § 386. Another person may be substituted for the dt*- fendant. A defendant against whom an action Is pending upon a contract, or for specific pei-sonal property, may, at any time before answer, upon alfidavit that a person not a party to the action makes against him, and without any collusion with him, a demand upon such contract, or for such property, upon notice to such person and the adverse party, apply to the court for an order to substitute such person In his place, and discharge him from liability to either party, on his depositing In court the amount claimed on the contract, or delivering the property, or its value, to such person as the court may direct; and the court may. In Its discretion, make the order. And when- ever conflicting claims are or may be made upon a person for or relating to personal property, or the performance of an obligation, or any portion thereof, such person may bring an action against the conflicting claimants to com- pel them to Interplead and litigate their several claims among themselves. The order of substitution may be made, and the action of Interpleader may be maintained, and the applicant or plaintiff be discharged from liability to all or any of the conflicting claimants, although their titles or claim have not a common origin, or are not Identical, but are adverse to and Independent of one an- other. En. March 11, 1872. Am'd. 1881, 19. Cal. Rep. CIt. 59, 273; 65, 160; 66, 42; 69, 153; 69, 155; 72, 234; 72, 516; 73, 303; 74, 257; 75, 543; 111, 376; 111, 393; 123, 110; 127, 518; 131, 325; 133, 643; 137, 70; 141, 102; 142. 113. § 387. Intervention, when It takes place and how made. Any person may, before the trial. Intervene in an action or proceeding, who has an interest in the matter in liti- gation, in the success of either of the parties, or an Inter- est against both. An Intervention takes place when a third person Is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what Is sought by the complaint, or by uniting with the defendant In resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant, and Is made by com- plaint, setting forth the grounds upon which the inter- vention rests, filed by leave of the court and served upon the parties to the action or proceeding who have not ap- peared, and upon the attorneys of the parties who have 129 PARTIES TO CIVIL ACTIONS. S5 388. 389 appeared, who may answer or demur to it as If it were an original complaint. En. March 11, 1S72. >m'd. 1873-4. 296. Cal. Rep. Cit. 52, 511; 53, 744; 57, 77; 58, 355; 60, 125; 61, 556; 63, 5; 63, 562; 64, 47G; 66. 73; 93, 319; 97, 455; 101, 331; 101, 332; 104, 6; 104, 7; 104, 8; 108, .222; 111, 392; 112, 651; 114, 373; 121, 261; 123, 255; 126, 318; 128, 635; 130, 44; 131, 92; 132, 290; 137, 477; 140, 377; 144, 728. Eminent domain — intervention in: Post, sec. 1246. § 388. Associates may be sued by name of association. When two or more persons, associated in any business, transact such business under a common name, whether it comprise the names of such persons or not, the associates may be sued by such common name, the summons in such cases being serre'd on one or more of the associates; and the Judgment in the action shall bind the joint property of all the associates. In the same manner as if all had been named defendants, and had been sued upon their joint liability. En. March 11, 1872. Cal. Rep. Clt. 55, 3G7; 67, 146; 67, 147; 67, 569; 69, 458; 69, 621; 73, 391; 73, 393; 94, 299; 94, 300; 94, 802; 115, 508; 123, 647; 136, 302; 139, 177. Business associates — common name: Sec. 414. Partners under fictitious name must file certificate: See Civ. Code, sees. 2466 ©t seq. 8 389. Court, when to decide controversy or to order otiier parties to be brouglit in. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must then order them to be brought in, and to that end may order amended and sup- plemental pleadings, or a cross-complaint to be filed, and summions thereon to be issued and served. And when, in an action for the recovery of real or personal property, a person, not a party to the action, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in, by th'e proper amendment. En. March 11, 1872. Am'd. 1897,. 9. Cal. Rep. Cit. 64, 476; 65, 455; 69, 621; 74, 443; 76, 542; 95, 25G; 112, G51; 115, 420; 116, 447; 116, 453; 117, 550; 126, 318; 130, 521; 136, 536; 136, 639; 187, 658; 142, 70; 144, 729; 145, 570; 146, 498. §§ 390, 3»2 PLACE OP TRIAL. 14« Prac. Act, sec. 17. En. April 29, 1851. Cal. Rep. Cit 1, 177; 5, 282; 9, 97; 22, 205; 27, 333; 38, 522; 44, 39G. Joining landlord: Ante, sec. 379; Civ. Code, sec. 1949. Party, adding and amending name of: Ante, sec. 473. § 390. Actions against fire departments. Causes of action upon contract, or for damages arising out of, or pertaining or incident to, the official administration of the fire departments created by acts of the legislature oi ihis state, shall be brought directly by and against the muni- cipality by its corporate name wherein the damage wag sustained. And the said boards of fire commissionfcro shall not be sned as such, except to compel or restrain tha performance of acts proper to be compelled oi restrained under and not within the discretion intended to be con- ferred by this act. En. Stats. 1885, 92. TITLE IV. OP THH PLACE OP TRIAL OF CIVIL ACTIONS. { J9J. Certain actions to be tried where the Bubjcsct or some part there- of IS situated. § 293. Other actions, where the cause or some part thereof arose. I 394. Place of trial of actions against counties. § 395. Other actions according to the residence of the parties. § 396. Action may be tried in any county, unless the defendant de- mand a trial in the proper county. § 897. Place of trial may be changed In certain cases. § 398. When judge is disqualified, cause to be transferred. S 339. Persons to bo trar.snilttedL Costs, etc. Jurisdlctloa, etc. I 400. Proceedings after judgment In certain cases transferred. Gen. Cit. to Chap. — Cal. Rep. Cit. 54, 188. § 392. Certain actions to be tried where the subject or some part thereof is situated. Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof is situated, subject to the power of the court to change the place of trial, as provided in this code: 1. For the recovery of real property, or of an estate or 141 PLACE OF TRIAL. § 393 interest therein, or for the determination, in any form of such right or interest, and for injuries to real property. 2. For partition of real property. 3. For the foreclosure of all liens and mortgages on real property. Where the real property is situated partly in one county and partly in another, the plaintiff may select either of the counties, and the county so selected is the proper county for the trial of such action; provided, that in the case mentioned in this subdivision, if the plain- tiff prays in his complaint for an injunction pending the action, or applies pending the action, for an injunction, the proper county for the trial shall be the county in which the defendant resides or a majority of the defendants reside at the commencement of the action. En. March 11, 1872. Am'd. 1875-6, 90; 1889, 352. CaL Rep. Cit 51, 567; 54, 187; 56, 175; 60. 410; 61, TO; 63, 500; 73, 184; 86, 97; 86, 105; 86, 200; 88, 575; 88, 576; 88. 577; 101, 461; 102, 335; 105, 141; 106, 58; 108, 222; 113, 610; 115, 250; 129, 278; 133, 59; 133, 60; 136, 636; 138, 70; 138, 581; 140, 135; 140, 472; 140, 473; 144, 74; 147, 474. Subd. 1—66, 344; 77, 131; 79. 606; 80. 309; 83, 184; 100, 16; 102, 335; 129, 278; 134, B87; 144, 773. Subd. 3—125, 314. Prac. Act, sec. 18. En. April 29, 1851. Am'd. 1861, 494. CaL Rep. Cit 15, 221; 16, 433; 26, 187. Riot, actions for damans caused by, must be tried in the county in whlcli the property injured la situated: PoL Code, sec 4453. § 39&. Other actions, where the cause or some part thereof arose. Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial: 1. For the recovery of a penalty or forfeiture imposed by statute; except tliat, when it is imposed for an offense committed on a lake, river, or other stream of water, situated in two cr 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 ; 2. Against a public officer, or person especially appointed to execute his duties, for an act done by him in virtue of his office; or against a person who, by his command or in §§ 3'J4, 395 PUACE OF TRIAL. M his aid, does anything touching the duties of such ouicer. En. March 11, 1872. Cal. Rep. Cit. 61, 78; 61, 79; 63, 500; 79, 31; 105, 141; 113, 610; 115, 250; 115, 302; 138, 581. Prac. Act. sec. 19. En. April 29, 1851. Cal. Rep. Cit. 9, 420; 10, 19; 15, 221. 5 394. Place of trial of actions against countiea. An action against a county or city and county may be com- menced and tried in such county or city and county unless such action is brought by a county or city and county, in which case it may be commenced and tried in any county or city and county not a party thereto; pro- vided further, that whenever an action is brought by a county or city against citizens of another county, or a corporation doing businesss in the latter, the action must be, on the motion of the defendant, transferred for trial to a county other than the plaintiff, if the plainliff be a county, and other than that in which the plaintiff is sit- uated, if the plaintiff be a city. En. March 11, 1872. Am'd. 1881, 23; 1891, 56. Cal. Rep. Cit. 61, 78; 102, 49; 115, 250; 136, 136; 136, 137; 138, 580; 138, 581; 138, 582. Actions against cities for injuries from mobs: See Pol. Code, sec. 4453. § 395. Other actions according to the residence of the parties. In all other cases, the action must be tried in the county in which the defendants, or some of them re- side at the commencement of the action; or, if none of the defendants reside in the state, or, if residing in this state, and the county in which they reside is unknown to the plaintiff, the same may be tried in any county which the plaintiff may designate in his complaint; and if the defend- ant is about to depart from the state, such action may be tried in any county where either of the parties reside or service is had; subject, however, to the power of the court to change the place of trial, as provided in this code. En. March 11, 1872. Cal. Rep. Cit 61, 78; 62, 319; 65, 394; 65, 395; 65, 602: 69, 154; 71, 489; 77, 132; 77, 449; 80, 563; 80, 564: 83, 497; 88, 575; 88, 576; 88, 577; 88, 578; 92, 200; 97 139; 97, 140; 97, 643; 100, 15; 100, 16; 101, 460; 102, 48; 102, 336; 105, 141; 106, 58; 111, 376; 113, 609; 143 PLACE OF TRIAL. §§ 396, 397 113, 610; 115, 250; 119, 79; 119, 80; 133, 59; 133, 60; 133, 507; 135, 155; 135, 574; 135. 136; 136, 137; 136, 138; 138, 580; 138, 581; 139, 715; 139, 716; 140, 472; 140, 473; 144, 774, Prac. Act, sec. 20, En. April 29, 1851. Am'd. 1858, 82. Cal. Rep. Cit. 9, 420; 13, 73; 15, 221; 22, 538; 26, 187; 71, 489. Changing venue in criminal actions: See Pen. Code, sees. 1033, 1034, § 396. Action may be tried in any county, unless the defendant demand a trial in the proper county. If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstand- ing, be tried therein, unless the defendant, at the time he appears and answers or demurs, files an affidavit of merits, and demands, in writing, that the trial be had in the proper county. En. March 11, 1872. Cal. Rep. Cit. 54, 407; 57, 348; 61, 75; 61, 78; 62, 319 63, 501; 64, 299; 65, 321; 66, 37; 69, 154; 69, 155 79, 33; 80, 561; 80, 563; 83, 497; 92. 201; 94, 398 97,137; 97,138; 100,17; 121,606; 133,60; 134,589 135, 579; 136, 363; 139, 716; 139, 717. § 397. Place of trial may be changed In certain cases. The court may, on motion, change the place of trial in the following ca.ses: 1. "^Tien the county designated in the complaint Is not the proper county; 2. When there is reason to believe that an impartial trial cannot be had therein; 3. When the convenience of witnesses, and the ends of justice would be promoted by the change; 4. When from any cause the judge is disqualified from acting. En. March 11, 1872. Cal. Rep. Cit 56, 328; 56, 330; 61, 75; 79, 50; 100, 15; 133, 60. Subd. 1—144, 774. Subd. 4—100, 320; 103, 398; 104, 604; 104, 605. Prac. Act, sec. 21, En. April 29, 1851. Cal. Rep. Cit, 15, 221; 24, 77. Appeal — from order as to change of venue: Post, sec. 939, subd. 3. Judge, when disqualified: See ante, sec. 170. Mandamus and prohibition — Controlling action of court on motion to change the place of trial by resort to these writs: See sees. 1085, 1102, post 55 S98-400 PL^CE OF TRIAL. 144 § 398. When Judge Is disqualified, cause to be trans- ferred. If an action or proceeding is commenced or pend- ing in a court, and the judge or justice thereof is disquali- fied from acting as such, or if, from any cause, the court orders the place of trial changed, it must be transferred for trial to a court the parties may agree upon, by stipu- lation In writing, or made in open court and entered in the minutes; or, if they do not so agree, then to the near- est or most accessible court where the like objection or cause for making the order does not exist, as follows: 1. If in a superior court, to another superior court. 2. If in a justice's court, to another justice's court In the same county. En. March 11, 1872. Am'd. 1881, 23; 1897, 184. Cal Rep. Cit. 5&, 131; 61, 216; 64, 300; 67, 331; 94, 27; 94, 28; 98, 119; 98, 362; 100, 320; 128, 570. § 399. Papers to be transmitted. Costs, etc. Jurisdic- tion, etc. When an order is made transferring an action or proceeding for trial, the clerk of the court, or justice of the peace, must transmit the pleadings and papers therein to the clerk or justice of the court to which it is trans- ferred. The costs and fees thereof, and of filing the papers anew, must be paid by the party at whose instance the order was made. "The court to which an action or pro- ceeding is transferred has and exercises over the same the like jurisdiction as if it had been originally com- menced therein. En. March 11, 1872. CaL Rep. Cit 133, 363; 136, 138; 142, 357. Costs on removal of criminal action chargeable against county: See Pol. Code, sees. 4345-4347. § 400. Proceedings after Judgment In certain cases transferred. 'S\Tien an action or porceeding affecting the title to or possession of real estate has been brought in or transferred to any court of a county other than the county in which the real estate, or some portion of it, is situ- ated, the clerk of such court must, after final judgment therein, certify under his seal of oflBce, and transmit to the corresponding court of the county in which the real es- tate affected by the action is situated, a copy of the judg- ment. The clerk receiving such copy must file, docket, and record the judgment in the record of the court, briefly designating it as a judgment transferred from court (naming the proper court). En. March 11, 1872. 146 MANNER OF COMMENCING. §§ 405, 406 TITLE V. OF THE MANNER OF COMMENCING CIVIL ACTIONS. § 405. Actions, how commenced. § 406. Complaint, how indorsed. Wlien summons may be Issued, and how waived. § 407. Summons, how Issued, directed, and what to contain. § 408. Alias summons. § 409. Notice of the pendency of an action affecting the title to real property. § 410. Summons, how served and returned. § 411. Summons, how served. § 412. Publication when defendant Is absent from the state, concealed, or a foreign corporation having no agent, etc. § 413. Manner of fublication. I 414. Proceedings where there are several defendants, and part oaly are served. § 41S. Proof of .service, how made. 5 418. When Jurisdiction at action acquired. § 405. Actions, how commenced. Civil actions in the courts of this state aro commenced by filing a complaint En Ma39 served with the summons, upon each of th3 defendants. When the summons is served by the sheriff, it must be returned, with his certificate of its Dervic-3, and of tho service of any copy of the complaint, 5 m MANNER OF COMMENClNa. 1« whoie such copy is served, to the oflBce of the clerk from which it issued. When it is served by any other person, it must be returned to the same place with an affidavit of such person of its service, and of the service of a copy of the complaint, where such copy is served. En. March 11, 1872. Am'd. 1873-4, 297; 1893, 207. Cal. Rep. Cit. 57, 355; 59. 473; 60, 11; 63, 466; 72, 74; . 95, 654; 110, 31; 110, 32; 137, 657; 143, 21. Prac. Act, sec. 28. En. April 29. 1851. Am'd. 1854. 59; 1855, 61; 1855, 196. Rep. 1855, 304. Am'd. 1859, 39; 1860, 298; 1869-70, 574. Cal. Rep. Cit. 7, 280; 11, 378; 28, 153; 34, 404; 35, 299; 35, 301; 45, 465. Costs, where served by pereon other than sheriff: See post. Appendix, Costs. Process, how returnable to another county: See Pol. Code, sec. 4177. Return of sheriff is prima facie evidence: See Pol. Code, sec. 4178. Delay of sheriff in making return, liability: See Pol. Code, sec. 4179. § 411. Summons, how served. The summons must be served by delivering a copy thereof, as follows: 1. If the suit is against a corporation formed under the laws of this state: to the president or other head of the corporation, secretary, cashier, or managing agent there- of. 2. If the suit is against a Toreign corporation, or a non- resident joint stock company, or association, doing busi- ness and having a managing or business ageut, cashier, or secretary within this state: to such agent, cashier, or secretary. 3. If against a minor under the age of fourteen years, residing within this state: to such minor, personally, and also to his father, mother, or guardian; or, if there be none within this state, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is employed. 4. If against a person residing within this state, who has been judicially declared to be of unsound mind, of incapable of conducting his own affairs, and for wh&iaa a guardian has been appointed: to sucla person and alas to his guardian. 5. If against a county, city or town: to the presideaft of the board of supervisors, president of th© council oo 143 MANNER OF COMMENCING. § 412 trustees, or other head of the legislative department thereof. 6. In all other cases to the defendant personally. En. March 11, 1872. Am'd. 1873-4, 298. Cal. Rep. Cit. 59, 473; 59, 493; 139, 177; 139, 178; 143, 21. Subd. 1—79, 104; 127, 68; 128, 332. Subd. 2—66, 315; 97, 397; 127, 68. Subd. 3—64, 597; 80, 499; 120, 430. Subd. 4—87, 531; 134, 633. Prac. Act, sec. 29. En. April 29, 1851. Am'd. 1854, 59; 1861, 496. Cal. Rep. Cit. 6, 187; 9, 637; 16, 388; 20, 82; 38, 153; 38, 154; 51, 617; 53, 741; 64, 597. Association, service may be on one of the members of: Ante, sec. 388. Return of summons: Post, sec. 415. Telegraph, service by: Post, sec. 1017. § 412. Publication when defendant is absent from the state, concealed, or a foreign corporation having no agent, etc. Where the person on whom service is to be made resides out of the state; or has departed from the state; or cannot, after due diligence, be found within the state; or conceals himself to avoid the service of summons; or is a foreign corporation having no managing or business agent, cashier or secretary within the state, and the fact appears by affidavit to the satisfaction of the court, or a judge thereof; and it also appears by such affidavit, or by the verified complaint on file, that a cause of action exists against the defendant in respect to whom the ser- vice is to be made, or that he is a necessary or proper party to the action; or when it appears by such affidavit, or by the complaint on file herein, that it is an action which relates to or the subject of which is real or per- sonal property in this state, in which such person ds- fendant or foreign corporation defendant has or claims a lien or interest, actual or contingent, therein, or in which the relief demanded consists wholly or in part in excluding such person or foreign corporation from any interest therein, such court or judge may make an order that the service be made by the publication of the sum- mons, provided that where service is sought to be made upon a person who cannot, after due diligence, be found within the state it must first appear to the court by the affidavit aforesaid that there has not been filed, on be- half of such person, in the county where such action is pending, the certificate of residence provided for by sec- 5 413 MANNER OF COMMENCINO. 160 lion one thousand one hundred and jlA.ty-three of the Civil Code in the county in which the action Is brought; or that said certificate was so filed and that the defendant cannot be found at the phice named in said certificate, which latter fact must be made to appear by the certificate of the sheriff of the county wherein said defendant claims residence in and by said certificate of residence, and which certificate of said sheriff must show that servUe of said Bummons was attempted upon said defendant at the place named In said certificate of residence but that said de- fendant was not to be found thereat. En. March 11, 1872. Am'd. 1880, 13; 1893, 285; 1905, 141. Cal. Rep. Cit. C4, 597; G7, 19; 68, 87; 70, 433; 70, 436; 72, 68; 73, 600; 76, 611; 76, C12; 76, 614; 76, 647; 86, 583; 86, 584; 92, 346; 92, 2c5; £9. 325; 101, 573; 109, 254; 115, 277; 119, 301; 13V, ^kZ; a27, 655; 138, 446; 144, 415; 144, 787. Prac. Act, sec. 30. En. April 29, 1851. Cal. Rep. Cit. 5, 466; 20, 82; 26, 152; 26, 1.54; 31, 351; 64, 597. § 413. Manner of publication. The order must direct the publication to be made in a newspaper to be desig- nated, as most likely to give notice to the person to be served, and not for such length ot time as may br deemed reasonable, at least once a week; but publijation against a defendant residing out of the state, or absent therefrom, must not be less than two months. In case of publica- tion, where the residence of a nonresident or absent de- fendant is known, the court or judge must direct a copy of the summons and complaint to be forthwith deposited in the postoffice, directed to the person to be served, at his place of residence. When publication is ordered, per- sonal service of a copy of the summons and complaint out of the state is equivalent to publication and deposit in the postoffice, and in either case the service of the sum- mons is complete at the expiration of the time prescribed by the order for publication. En. March 11, 1872. Am'd. 1873-4, 299. CaL Rep. Cit. 67, 19; 68, 87; 72, 68; 72. 72; 76, 614; 86, 583; 92, 355; 101, 249; 133, 460; 137, 426; 144, 423; 144, 424; 144, 490. Prac. Act, see. 31. En. April 29, 1851. Am'd. 1869-70, 511; 1871-2, 190. Cal. Rep. Cit. 1, 176; 5, 466; 6, 184; 12, 102; 26, 152- 26, 154; 31, 351; 32, 350; 33, 514; 34, 404. 151 MANNER OF COMMENCING. §§ 414-418 • Publication, proof of: Post, sees. 2010, 2011. Judgment by default: Post, sec. 585, subd. 3. § 414, Proceedings where there are several defendants, and part only are served. When the action is asainst two or more defendants, jointly or severally liable on a con- tract, and the summons is served on one or more but not on all of them, the plaintiff may proceed against the de- fendants serve-d in the same manner as if they were the only defendants. En. March 11, 1872. Cal. Rep. Clt. 58, GOT; G7, 14C; 67, M7; 68, 426; 68, 427; 68, 428; 69, 458; 69, 621; 70, 114; 70, 405; 73, 391; 75, 593; 94, 299; 103, 207; 125, 270; 136, 302; 136,575; 144, 4. Prac. Act, sec. 32. En. April 29, 1851. Cal. Rep. Cit. 6, 183; 12, 351; 17, 566; 39, 95; 50, 532; 67, 146; 68, 426; 68, 427. Joining persons severally liable upon Instruments: Ante, Bee. 383. Judgment against some defendants, proceedings contin- uing against the others: Post, sec. 579. Joint debtors, proceedings against, after Judgment against some: Post, sees. 989 et seq. § 415. Proof of service, how made. Proof of the service of summons and complaint must be as follows: 1. If served by the sheriff, his certificate thereof; 2. If by any other person, his affidavit thereof; or, 8. In case of publication, the afladavit of the printer, or his foreman or principal clerk, showing the same; and an affidavit of a deposit of a copy of the summons in the postotflce. If the same has been deposited; or, 4. The written admission of the defendant. In case of service otherwise than by publication, the certificate or aflfldavit must state the time and place of service. En. March 11, 1872. Cal. Rep. Cit. 128, 332. Subd. 1—59, 493. Subd. 3—72, 74; 73, 600; 93, 607; 101, 573; 119, 301; 134, 623. Prac. Act, sec. 33. En. April 29, 1851. Cal. Rep. Cit. 11. 314; 33, 512; 33, 514; 34, 404; 34, 425, 34. 430. Prac. Act, sec. 34. En. April 29, 1851. Cal. Rep. Cit. 34, 404; 45, 463. § 416. When Jurisdiction of action acquired. From the time of the service of the summons and of a copy of the § 520 THE PLEADINGS IN GENERAL. US complaint In a civil action, where service of a copy of the coraplalnt Is required, or of the completion ot the pub- UcJitlcn when serrlce by publication is ordered, the court 1e deemed to have acquired Jurisdiction of the parties, and to have control of all the subsequent proceedings. The voluTitary appearance of a defendant is equivalent to per- sonal service of the summons and copy of the complaint upon him. En. March 11, 1872. Am'd. 1873-4," 299. Cal. Rep. Clt. &6, 629; 59, 473; 60, 299; 64, 598; 75, 220; 75, 239; 84. 29; 87, 152; 92, 355; 99, 205; 1C3, 522; 117, 581; 122, 450; 125, 300; 133, 71; 141, 657; 144, 30. Prac. Act, sec. 35. En. April 29, 1851. C&l. Rep. Clt. 1. 872; 6, 296; 9, 111; 45, 463. Admission of servlca: Ante, sec. 415. Appearance: Post, sec. 1014. Waiver of Bummons: Ante, sec. 406. TITLE VI. OF THE PLEADINGS IN CIVIL ACTIONS. Chapter I. The Pleadings in General, §§ 420-422. II. The Complaint, §§ 425-427. III. Demurrer to the Complaint, §§ 430-434. IV. The Answer, §§ 437-442. V. Demurrer to Answer, §§ 443, 444. VI. Veriflcation of Pleadings. §§ 446-449. VII. General Rules of Pleading, §§ 452-465. VIII. Variance — Mistakes In Pleadings and Amend- ments, §§ 469-476. CHAPTER I. THE PLEADINGS IN GENERAL. 5 420. Deflnltlon of pleadings. 5 421. This code prescribes the form and rules of pleadings. § 422. What pleadings are allowed. g 420. Definition of pieadings. The pleadings are the formal allegations by the parties of their respective claims and defenses for the judgment of the court. En. March 11, 1872. Cal. Rep. Clt. 71, 522; 117, 240. Prac. Act, sec. 36. En. April 29, 1851. lEJ THE CX)MPL.ArNT. S§ 421-45M I 421. This code prescribes the form and rules of pleadings. The forms of pleading in civil actions, and the rules by which the suflaciency of the pleadings is to be determined are those prescribed by this code. En. March 11, 1872. Cal. Rep. Cit. 83, 397; 114, 475; 139, 474. Prac. Act, sec. 37. En. April 29, 1851. Cal. Rep. Cit. 9, 467; 9, 475; 16, 243; 24, 95. One form of actions: Ante, sec. 307. Rules of pleading, generally: Post, sees. 452 et seq. I 422. What pleadings are allowed. The only pleadings allowed on the part of the plaintiff are: 1. The complaint; 2. The demurrer to the answer. And on the part of the defendant: 1. The demurrer to the complaint; 2. The answer. En. March 11, 1872. Cal. Rep. Cit. 56, 325; 114, 475. Prac. Act, sec. 38. En. April 29, 1851. Am'd. 1855, 303; 1860, 298; 1863, 578; 1866, 701. Cal. Rep. Cit. 1, 174; 5, 125; 34, 27; 34, 28; 38, 585; Sa, 177; 77, 226. CHAPTER II. THE COMPLAINT. S 425. Complaint, first pleading. § 436. Complaint, what to contain. § 427. What causes of action may be joined. S 425. Complaint, first pleading. The first pleading on the part of the plaintiff is Uie complaint. iiU. March 11, 1872. § 426. Complaint, what to contain. The complaint must contain: 1. The title of the action, the name of the court and county in which the action is brought, and the names of the parties to the action; 2. A statement of the facts constituting the cause of action, in ordinary and concise language; ! 4?7 TJfE COMPLAINT. 154 3. A doTnand uf the relief wliich the plaintifT claims. If the recovery of money or dauiages m Oemrnded, tho amount thereof must be stated. Ea. March 11, 1872. Cal. Rep. Cit. 79, 5cS5; 124, 83-1 Subd. 2— fil, 5^5; G3, 427; 77, 413; 81. 121; 83, 397; 93, 57; 94, 174; 99, 418; 126, 634; 139, 474. Subd. 3—99, 244. Prac. Act, sec. 39. En. April 29, 1851. Cal. Rep. Cit. 1, 96; 7, 261; 25, 89; 37, 2.W; 37. r^o.'?; 4.\ 491. Title, papers defectively entitled: Post, sec. 10 IG. Venue: Ante, sees. 392-40G. Parties: Ante, sees. 367-390. Parties, misjoinder or nonjoinder: Post, sec. 430. Association may be sued under cfammon name: Ante, sec. 388. Intervention: Ante, sec. 387. Fictitious names for defendants: Post, sec. 474. Abbreviations and numerals: Ante, sec. 186. Construction of pleadings to be liberal: Post, sec. 45?.. Errors and defects to be disregarded: Post. sec. 475. Material allegations not controverted taken as true: Post, sec. 462. Service of complaint: Ante, sec. 410. Several causes of action, uniting: Post, sec. 427. Pleading, in particular cases: See Particular Titlo. Amendment of pleadings: Post, sees. 472, 473; of com- plaint: Post, sec. 432. As to effect of setting out written instrument if its genuineness is not denied on oath: Post, sees. 447-449. Variance: Post, sees. 469 et seq. Gold coin, allegations to obtain judgment In: Post, sec. 667. Supplemental complaint: Post, sec. 464. Verification of pleadings: Post, sec. 446. § 427. What causes of action may be joined. The plaintiff may unite several causes of action in the same complaint, where they all arise out of: 1. Contracts, express or implied; 2. Claims to recover specific real property, with or without damages for the withholding thereof, or for waste committed th-^reon, and the rents and profits of the same; 3. Claims to recover specific personal property, witn or without damages for the withholding theieof; 155 DETMURRER TO CO\TPl.ArNT. 5 -17.0 4. Claims against a trustee by virtue of a coulract or by operation of law; 5. Injuries to character; 6. Injuries to person; 7. Injuries to property; The causes of action so united must all belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated; but an action for malicious arrest and prosecution, or either of them, may be united with the ac- tion for either an injury to character or to the person. En. March 11, 1872. Cal. Rep. Cit. 51, 491; 65, 488; 73, 190; SO, 324; 83, 400 90, 76; 96, 401; 96, 402; 100, 373; 102, 510; 105, 689 109, 209; 135, 560; 137, 649. Subd. 1—88, 541; 92, 102 104, 640. Subd. 2—65, 162; 72, 329. Subd. 4—71, 188 71, 189; 125, 234; 140, 50; 146, 56. Prac. Act, sec. 64. En. April 29, 1851. Am'd. 1855, 196. Cal. Rep. Cit. 1, 192; 3, 206; 15, 152; 22, 462; 28, 488; 28, 639; 31, 496; 32, 342; 36, 283; 46, 171; 50, 654. CHAPTER III. DEMURRER TO THE COMPLAINT. § 430. When defeirdant may demur. § 431. Demurrer must specify, etc. May be taken to part. May an- swer and demur at same time. § 4'32. What proceedings are to be had when complaint amended. § 433. Objection not appearing on complaint, may be taken by answer. § 434. Objections, when deemed waived. § 430. When defendant may demur. The defendant may demur to the complaint within the time required in the summons to answer, when it appears upon the face thereof, either: 1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or, 2. That the plaintiff has not legal capacity to sue; or, 3. That there is another action pending between the same parties for the same cause; or. 55 431. C2 DEMURRER TO COMPLAINT. IM 4. That there is a defect or misjoinder of parties plain- tiff or defendant; or, 5. That several causes of action have been improperly united; or, 6. That the complaint does not state facts sufficient to constitute a cause of action; or, 7. That the complaint is ambiguous, unintelligible, or uncertain. En. March 11, 1872. Cal. Rep. Cit. 54, 292; 76, 43; 77, 311; 98, 417;" 118, 224; 118, 239; 124, 83; 125. Ill; 136, 614. Subd. 2—66. 59; 144, 364; 146, 180; 146. 181. Subd. 4—95, 133; 110, 289; 110, 460. Subd. 5—90, 76; 102. 509; 110, 487. Subd. 6—68, 59. Subd. 7—82, 212; 87, 458; 121, 171; 123, 88; 137, 153. Prac. Act, sec. 40. En. April 29, 1851. Am'd. 1859. 139. Cal. Rep. Cit. 1, 174; 1, 395; 4, 313; 6, 165; 7, 334; 8, 369; 8, 517; 8, 590; 25, 89; 32, 119; 32, 342; 43, 184. General and special demurrer: See sec. 431, infra. Demurring and answering at same time: Post, sees. 431, 441. Serving demurrer: Post, sec. 465. Judgment on demurrer: Post, sec. 636. Demurrer is an appearance: Post, sec. 1014. Waiving objections by not demurring: Post, sec. 434. § 431. Demurrer must specify, etc. May be taken to part. May answer and demur at same time. The de- murrer must distinctly specify the grounds upon which any of the objections to the complaint are taken. Unless it do so, it may be disregarded. It may be taken to the whole complaint or to any of the causes of action stated therein, or the defendant may demur and answer at the same time. En. March 11, 1872. Cal. Rep. Cit. 96, 493; 118, 420; 133, 310. Prac. Act, sec. 41. En. April 29, 1851. Cal. Rep. Cit. 25, 89; 25, 90; 25, 91; 25, 92; 26, 154; 30, 673. Prac. Act, sec. 42. En. April iJ9, 1851. Cal. Rep. Cit. 1, 174; 38, 541. § 432. What proceedings are to be had when complaint amended. If the complaint is amended, a copy of the amendments must be filed, or the court may, in its dis- 15T ■ DEMURRER TO COMPLAINT. 5 § 433, 434 cretlon, require the complaint, as amended, to be filed, and a copy of the amendments, or amended complaint, must be served upon the defendants affected thereby. The defendant must answer the amendments or the complaint, as amended, within ten days after service thereof, or such other time as the court may direct, and judgment by de- fault may be entered upon failure to answer, as in other cases. En. March 11, 1872, Am'd. 1880. 2. Cal. Rep. Cit. 58, 45; 58, 94; 60, 295; 60, 405; 72, 88; 90, 61; 99, 205; 99, 206; 137, 676; 146, 182. Prac. Act, sec. 43. En. April 29, 1851. Am'd. 1854, 60; l6o5, 196. Cal. Rep. Clt. 1, 174; 1, 395. Amendment — generally: Post, sees. 472, 473. § 433, Objection not appearing on compiaint, may be taken by answer. When any of the matters enumerated in section 430 do not appear upon the face of the complaint, the objection may be taken by answer. En. March 11, 1812. Cal. Rep. Cit. 60, 405; 66, 517; 87, 460; 92, 88; 95, 133; 110, 460; 121, 571; 130, 520. Prac. Act, sec. 44. En. April 29, 1851. Cal. Rep. Cit. 1, 175; 1, 395; 4, 313; 6, 165; 7, 334; 8, 590; 25, 89; 25, 91; 31, 420; 36, 126; 47, 221, 144, 364; 146, 181. § 434. Objections, when deemed waived. If no objec- tion be taken, either by demurrer or answer, the defendant must be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and tbe ob- jection that the complaint does not state facts sufficient to constitute a cause of action. En. March 11, 1872. Cal. Rep. Cit. 59, 516; 66, 59; 69, 157; 70, 78; 70, 405; 74, 153; 77, 392; 78, 256- 82, 525; 92, 88; 95, 133; 95, 579; 96, 611; 101, 641; 103, 445; 110, 289; 110, 337; 110, 460; 110, 487; 121, 571; 124, 130; 134, 412; 136, 614; 137, 306; 139, 55; 142, 70; 144, 364; 145, 185; 147, 694. Prac. Act, sec. 45. En. April 29, 1851. Cal. Rep. Cit. 1, 195; 1, 372; 4, 313; 7, 334; 8, 517; 8, 590; 21, 635; 22, 639; 25, 88; 25, 90; 30, 673; 31, 420; 32, 342; 33, 656; 36, 126. § 4;J7 THE ANSWKR. " US CHAPTER IV. THE ANSWER. j 437. Answer, what to contain. § 438. When counterclaim may be set up. § 439. When defendant omits to set up counterclaim. § 440. Counlerclaim not barred by death or assignment. § 441. Answer may contain several grounds o£ derense. Defendant may answer part and demur to part of com- plaint. § 442. Cross-couiplalnt. § 437. Answer, what to contain. The answer of the defendant shall contain: 1. A general or specific denial of the material allega- tions of the complaint controverted by the defendant. 2. A statement of any new matter constituting a de- fense or counterclaim. If the complaint be verified, the denial of each allegation controverted must be specific, and be made positively, or according to the information and belief of the defendant. If the defendant has no informa- tion or belief upon the subject sufficient to enable him to answer an allegation of the complaint, he may so state in his answer, and place his denial on that ground. If the complaint be not verified, a general denial is sufiicient, but only puts in issue the material allegations of the com- plaint. En. March 11, 1872. Am'd. 1873-4, 300. Cal. Rep. Cit. 65, 324; 65, 385; 92, 180; 94, 174; 98, 646; 100, 488; 119, 433; 119, 472; 129, 50. Subd. 1—139, 378; 143, 133. Subd. 2—89, 445; 99. 87; 100, 486; 118, 690; 119, 471; 121, 271; 126, 293; 128, 328; 132, 11; 133, 71; 138, 722. Prac. Act, sec. 46. En. April 29, 1851. Am'd. 1854, 60; 1860, 298; 1862, 562; 1866, 702. Cal. Rep. Cit. 6, 200; 8, 149; 8, 369; 9, 38; 9, 62; 18, 314; 19, 658; 21, 435; 25, 89; 26, 306; 27, 371; 32, 629; 33, 211; 35, 280; 38, 585; 39, 177. Pleas in abatement: See ante, sec. 430. Amendment: Ante, sees. 472, 473. Appearance, answering is: Post, sec. 1014. Counterclaim: Post, sees. 438-441. Cross-complaint: Post, sec. 442. Death of party: Ante, sec. 385. Disability of party: Ante, sec. 385. Errors and defects to be disregarded: Post, sec. 475. 159 THE ANSWER. §§ 43S-440 Gold coin, etc., allegations as to money being payable in should be denied: Post, sec. 667. Striking out: Post, sec. 453. Supplemental answer: Post, sec. 464. Time to answer — extension of: Post, sec. 1054. Writing— Setting forth in answer, effect of: Post, sees 44,8, 449. Particular actions, answers in: See Particular Title. § 438. When counterclaim may be set up. The counter- claim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action, and arising out of one of the following causes of action: 1. A cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action; 2. In an action arising upon contract; any other cause of action arising also upon contract, and existing at the commencement of the action. En. March 11, 1872. Cal. Rep. Cit. 51, 540; 57, 647; 65, 324; C5, 32G; Gi), 618; 70, 112; 72, 226; 72 227; 87, 266; 96, 91; 101, 290; 104, 135; 107, 67; 110. 264; 110, 266; 113. 440; 116, 96; 119, 472; 119, 474; 126, 293; 126, 295; 132, 161; 140, 498; 142, 420. Subd. 1—53, 32; 67, 590; 70, 113; 100, 34; 110, 263; 120, 413; 125. 49; 129, 4/9; 135, 40; 137, 338; 140, 498; 142, 421. Subd. 2—51, 226; 58. 354; 64, 274; 64, 491; 101, 649; 118, 337; 119. 471; 120. 28; 120. 413; 125, 49; 126, 293; 143, 255. Prac. Act, sec. 47. En. April 29. 1851. Am'd. 1860, 299. Cal. Rep. Cit. 8. 405; 19. 658; 30, 252; 35, 280; 39, 177; 39, 178; 39, 392; 50, 654. Dismissing action where counterclaim: Post, sec. 581. Omission to set up counterclaim prevents future action thereon: Post, sec. 439. Compensated, cross-demands deemed: Post. sec. 440. § 439. When defendant omits to set up counterclaim. If the defendant omit to set up a counterclaim in the cases mentioned in the first subdivision of the last section, neith- er he nor his assignee can afterward maintain an action against the plaintiff therefor. En. March 11, 1872. Cal. Rep. Cit. 58, 611; 129, 479; 135, 41. Subd. 3.— 130, 520. § 440. Counterclaim not barred by death or assignment. When cross-demands have existed between persons under §5 4fl, 442 THE ANSWER. MB such circumstances that, If one had brought an action against the other, a counterclaim could have been set up, the two demands shall be deemed compensated, so far as they equal each other, and neither can be deprived of the benefit thereof by the assignment or death of the other. En. March 11, 1872. Am'd. 1873-4, 300. Cal. Rep. Cit. 43, 146; 65, 324; 107, 62; 107, 67; 110, 266; 118, 341; 119, 474; 126, 293; 126, 295; 136, 628. Prac. Act, sec. 48. En. April 29, 1851. § 441. Answer may contain several grounds of defense. Defendant may answer part and demur to part of com- plaint. The defendant may set forth by answer as many defenses and counterclaims as he may have. They must be separately stated, and the several defenses must refer to the causes pf action which they are intended to answer, in a mannner by which they may be intelligibly distin- guished. The defendant may also answer one or more of the several causes of action stated in the complaint, ajid demur to the residue. En. March 11, 1872. Cal. Rep. Cit. 92, 180; 115, 316; 121, 171; 121, 417; 129, 651. Prac. Act, sec. 49. En. April 29, 1851. Cal. Rep. Cit. 22, 677; 28, 387; 43, 268. § 442. Cross-complaint. Whenever the defendant seeks affirmative relief against any party, relating to or depend- ing upon the contract or transaction upon which the ac- tion is brought, or affecting the property to which the ac- tion relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross-complaint. The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to the original complaint. En. Stats. 1873-4, 301. Cal. Rep. Cit. 57, 589; 57, 593; 57, 647; 58, 239; 64, 514; 68, 280; 69, 618; 69, 619; 71, 149; 74, 492; 81, 188; 82, 416; 83, 599; 84, 587; 84, 589; 87, 153; 87, 264; 91, 554; 109, 110; 110, 152; 112, 651; 120, 57; 120, 58; 122, 249; 125, 660; 120, 60; 126, 318; 126, 594; 127. 615; 127, 617; 127, 621; 130, 44; 135, 44; 136, 315; 130, 509; 136, 535; 138, 317; 140, 498; 141, 474; 142, 206; 142, 420; 142, 421; 144, 729; 145, 570. Original complaint: Sees. 420, 427. Dismissing action, where cross-complaint: Post, sec. 581. DEMURRER TO ANSWER. 5§ 413. 44* CHAPTER V. DEMURRER TO ANSWER. § 443. When plaintiff may vlemur to answer. § 444. Grounds of demurrer. § 443. When plaintiff may d:mur to answer. The plain- tiff may, within the same length of time after service of the answer as the defendant is allowed to answer after service of summons, demur to the answer of the defendant, or to one or more of the several defenses or counterclaims set up in the answer. En. March 11, 1872. Am'd. 1873-4, 301. Cal. Rep. Cit. 109, 443; 110, 152; 119, 529. Prac. Act, sec. 50. En. April 29, 1851. Am'd. 1854, 60; 1860, 299; 1862, 562; 1866, 702. Cal. Rep. Cit 18, 387; 28, 297; 30, 564; 34, 161; 38, 585; 98, 417. Demurrer to complaint: Ante, sec. 430. Service of demurrer: Pest, sec. 465. Time to demur, extending: Post, sec. 1054. Time to answer when demurrer overruled begins to run from service of notice of decision: Post, sec. 476. § 444. Grounds of demurrer. The demurrer may be taken upon one or more of the following grounds: 1. That several causes of counterclaim have been im- properly joined; 2. That the answer does not state facts sufficient to con- stitute a defense or counterclaim; 3. That the answer is ambiguous, unintelligible, or un- certain. En. March 11, 1872. Cal. Rep. Cit. 68, 329; 87, 405; 119, 529. Grounds of demurrrer: Ante, sec. 430. Code Civil Proc.— U. I tM VERIFICATION OF PLEADINGS. Ifi2 CHAPTER VI. VERIFICATION OF PLEADING3. S *ii. VerlflcallOH of pleadings. 9 447. Copy of written Instrument contained In convplaJnt admitted, unless answer Is verified. i 448. When defense la founded on written Instrument set out In answer, Its execution admitted, unless denied by plaintiff, under oath. S 449. ElxcepUons to rules prescribed by two preceding sections. 5 446. Verification of pleadings. Every pleading must be subscribed by the party or bis attorney; and when the complaint is verified, or when the state, or any officer of the state, in his official capacity, is plaintiff, the answer must be verified, unless an admission of the truth of the complaint might subject the party to a criminal prosecu- tion, or, unless an officer of the state, in his official capa- city, is defendant. In all cases of a verification of a pleading, the affidavit of the party must state that the same is true of his own knowledge, except as to the mat- ters which are therein stated on his information or be- lief, and as to those matters that he believes it to be true; and where a pleading is verified, it must be by the affidavit of a party, unless the parties are 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 by the attorney, or any other per- son except one of the parties, he must set forth in the affidavit the reasons why it is not made by one of the parties. When a corporation is a party, the verification may be made by any officer thereof. En. March 11, 1872. Cal. Rep. Cit. 52, 182; 58, 40; 58, 41; 60, 375; 65, 337; 65, 338; 68, 410; 72, 88; 78, 121; 80, 60; 83, 5C2; 98, 33; 106, 579; 113, 171; 114, 475; 124, 115; 128, 328; 128, 584; 138, 158; 138, 447; 147, 494. Prac. Act, sec. 51. En. April 29, 1851. Am'd. 1860, 299; 1862, 562. Cal. Rep. Cit. 9, 423. Prac. Act. sec. 52. En. April 29, 1851. Am'd. 1S60, 299; 1862, 562. Cal. Rep. Cit. 9, 423. Prac. Act, sec. 55. En. April 29, 1851. - Cal. Rep. Cit. 19, 34; 19, 39; 33, 211. IC3 VERIFICATION OF PLEADINGS. §§ 447-449 Attorneys' power to bind client: Ante, sec. 283. Verifj'ing accusation for disbarring attoi'ney: See sec. 291, ante. § 447. Copy of written Instrument contained in com- plaint admitted, unless answer is verified. When an action is brouglit upon a written instrument, and the complaint contains a copy of such instrument, or a copy is annexed thei'eto, the genuineness and due execution of such instru- ment are deemed admitted, unless the answer denying the same be verified. En. March 11, 1872. Cal. Rep. Cit. 71, 394; 73, 411; 74, 411; 80, 613; 82, 505; 82, 506; 127. 29; 128, 328; 130, 103; 135, 677; 143, 134; 1-lfi, 694. Prac. Act, sec. 53. En. April 29, 1851. Cal. Rep. CIt. 6, 7; 32, 88. § 448. When defense is founded on written instrument set out in answer, its execution admitted, unless denied by plaintiff, under oath. When the defense to an action is founded on a written instrument, and a copy thereof la contained in the answer, or is annexed thereto, the gen- uineness and due execution of such instrument are deemed admitted unless the plaintiff file with the clerk, within ten days after receiving a copy of the answer, an afli- davit denying the same, and serve a copy thereof on the defendant. En. March 11, 1872. Am'd. 1873-4, 301. Cal. Rep. Cit. 60, 630; 66, 88; 73, 275; 80, 613; 104, 581; 108, 361; 108, 362; 110. 200; 110, 203; 119, 431; 119, 432; 122, 570; 122, 675; 125, 199; 128, 424; 135, 677; 143, 134. Prac. Act, sec. 54. En. April 29, 1851. Am'd. 1860, 299; 1862, 562; 1866, 702. Cal. Rep. Clt. 49, 40. § 449, Exceptions to rules prescribed by two preceding sections. But the execution of the instrument mentioned in the two preceding sections is not deemed admitted by a failure to deny the same under oath, if the party desir- ing to controvert the same is, upon demand, refused an inspection of the original. Such demand must be in writing, served by copy, upon the adverse party or his at- torney, and filed with the papers in the case. En. March 11, 1872. Am'd. 1880, 111. Inspection of writings, order for: Post, sec. 1000, IS io2-m CliNLJliAL RLLEo OK PLKAUINQ. IM CHAPTER VII. GENERAL RULES OF PLEADINO. 5 452. Pleadings to be liberally construed. § 453. Sham and Irrelevant answers, etc., may be stricken out. § 454. How to state an account In pleadings. § 455. Description of real property In a pleading. § 456. Judgments, how pleaded. § 457. Conditions precedent, how to be pleaded. § 4.'>S. Statute of limitations, how pleaded. § 459. Private statvites, how plea-ded. I 400. Libel and slander, how stated In complaint. § 461. Answer In such cases. § 462. Allegations not denied, when to be deemed true. When to be deemed controverted. § 463. A material allegation defined. 8 464. Supplemental complaint and answer. § 465. Pleadings subsequent to complaint must be filed and served. § 452. Pleadings to be liberally construed. In the con- struction of a pleading, for the purpose of determining ita effect, its allegations must be liberally construqd, with a view to substantial justice between the parties. En. March 11, 1872. Cal. Rep. Clt. 5G, 90; 88. 194; 103, 286; 105, 257; 130, 496; 135, 48; 136, 71. Prac. Act, sec. 70. En. April 29, 1851. Cal. Rep. Cit. 28, 680; 28, 683; 32, 192; 39, 175. § 453. Sham and Irrelevant answers, etc., may be strick- en out. Sham and irrelevant answers, and Irrelevant and redundant matter inserted in a pleading, may be stricken out, upon such terms as the court may. In its discretion, impose. En. March 11, 1872. Cal. Rep. Cit. 53, 259; 57, 287; 65, 342; 98. 417; 98, 418; 100, 433; 112, 173. • Prac. Act, sec. 57. En. April 29, 1851. Cal. Rep. Cit. 8, 369; 30, 564. § 454. How to state an account in pleadings. It Is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within five days after a demand thereof in writing, a copy of the account, or be precluded from giv- ing evidence thereof. The court or judge thereof may Igg GENERAL RULES OF PLEADING. §§ 435-457 order a further account when the one delivered is tco general or is defective in any particular. En. March 11, 1872. Am'd. 1880, 2. Cal Ren Cit. 70, 5C2; 74. 64; 74, 73; 74, 76; 74, 77; 77 186 77 413; 82, 151; 84, 182; 84, 184; 90, 435; 9g' 671- 97, 68; 103, 555; 104, 466; 110, 692; 114, 38; 123, 87; 135, 407; 141, 601. Prac. Act, sec. 56. En. April 29, 1851. Cal. Rep. Cit. 17, 281. § 455. Description of real property in a pleading. In an action for the recovery of real property, it must be de- scribed in the complaint with such certainty as to enable an officer upon execution to identify it. En. March 11, 1872 Prac. Act, sec. 58. En. April 29, 1851. Cal. Rep. Cit. 6, 156; 30, 565. § 456. Judgments, how pleaded. In pleading a judg- ment or other determination of a court, officer, or board, it is 'not necessary to state the facts conferring jurisdic- - tion but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading m^st establish on the trial the facts conferring jurisdiction. En. March 11, 187^. r-il Ren Cit 47. 512; 52, 410; 57, 391; 59, 451; 65, 284 65 424; 71, 259; 77, 189; 90, 369; 92, 335; 93, 110- 97 9- 99, 215; 118. 420; 118, 682; 121, 28; 124, 18:' 125, 455; 127, 580; 128. 397; 138. 230; 139, 57; 139, 60. Prac. Act, sec. 59. En. April 29, 1851. Cal. Rep. Cit. 35, 448; 38, 601; 93, 110. Judgment as an estoppel: See post. sec. 1908. § 457. Conditions precedent, how to be pleaded. In pleading the performance of conditions precedent In a contract, it is not necessary to state the facts showing such performance, but it may be stated generally that the party dulv performed all the conditions on his Part, and If such allegations be controverted, the party pleading must establish, on the trial, the facts showing such per- formance. En. March 11, 1872. Cal. Rep. Cit. 66, 573; 75. 638; 76, 41; 78, 184; 78 185; 87, 498; 89, 174; 123, 91; 133. 31; 139. 595; 141.' 672. Prac. Act. sec. 60. En. April 29, 1851. Cal. Rep. Cit. 6. 263; 25, 303; 35, 448; 36, 177; 47, 431. Conditions precedent: See Civ. Code, sees. 1436 et seq. 5§ 15S-461 GENERAL niTLES OF PLPADINa, 1« § 458. Statute of limitations, how plearled. In ^.leading the statute of limitations, it is not necessary to state the faois showing the defense, but it may be stated generally that the cause of action is barred by the provisions of sec- tion (giving the number of the section and subdivi- sion thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred. En. March 11, 1872. Cal. Rep. Cit 56, 381; 68, 351; 68, 352; 72, 76; 72, 600; 73, 421; 95, 194; 116, 59; 120, 162; 124, 449; 135, 610. § 459. Private statutes, how pisaded. Tn pleading a pri- vate statute, or a right derived the^^ifrom, it is sufficient to refer to such statute by its title and the day of its pas- sage. En. March 11, 1872. Cal. Rep. Cit. 95, 315; 126. 229. Prac. Act, sec. 61. En. April 29, 1851. Cal. Rep. Cit. 1, 174; 1, 177. § 460. Libel and slander, how stated in complaint. In an action for libel or slander, it is not necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it is sufficient to state, generally, that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff must establish, on the trial, that it was so published or spoken. En. March 11, 18V2. Cal. Rep. Cit. 57, 578; 66, 678; 66, 679; 93, 64; 93, 67; 93, 73; 122, 61; 132, 226. Prac. Act, sec. 62. En. April 29, 1851. Cal. Rep. Cit. 1, 159; 1, 196. Libel and slander: See Civ. Code, sees. 44 et seq. § 461. Answer in such cnses. In the actions mentioned in the last section, the defendant may, in his answer, al- lege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages; and whether he prove the justification or not, he 1«T GENRRAL RUT.ES OP PLEADING. §§ 4G2-464 may give in evrdence the mitigating circumstances. En. March 11, 1872. Cal. Rep. Cit. 82, 528; 107, 269. Prac. Act, sec. 63. En. April 29, 1851. Cal. Rep. Cit. 1, 195; 9, 536; 47, 258. Libel and slander: See Civ. Code. sees. 44 et seq. § 462. Allegations not denied, when to be deemed true. When to be deemed controverted. Every material allega- tion of the complaint, not controverted by the answer, must, for the purposes of the action, be taken as true; the state- ment of any new matter in the answer, in avoidance or constituting a defense or counterclaim, must, on the trial, be deemed controverted by the opposite party. En. March 11, 1872. Cal. Rep. Cit. 56, 373; 57, 589; 65, 422; 82, 95; 82, 573; 84, 204; 88, 227; 89, 344; 92, 562; 94, 543; 97, 346; 104, 581; 107, 4.'?2; 117, 240; 119, 431; 119, 432; 119, 433; 119, 528; 119. 529; 119, 530; 120, 162; 122. 570; 122. 571; 122, 675; 124, 215; 125, 489; 127, 541; 128, 425; 128, 426; 131, 10; 132, 11; 132, 291; 140, 378; 141, 474; 144, 112; 145, 440; 145, 629; 146, 388; 146, 620; 146, 723. Prac. Act, sec. 65. En. April 29, 1851. Am'd. 1854, 60; 1860, 300; 1861, 494; 1862, 563; 1866, 703. Cal. Rep. Cit. 6, 200; 7, 262; 9, 62; 8, 149; 14, 93; 14, 509; 18, 314; 19. 34; 21, 350; 25, 197; 28, 244; 31, 195; 32, 456; 35, 29; 38, 585; 39, 177; 39, 259. Cross-complaint must be replied to: See ante, sec. 442. Answer: See, generally, ante, sec. 437. Material allegations: Post, sec. 463. § 463. A material allegation defined. A material allega- tion in a pleading is one essential to the claim or defense, and which could not be stricken from the pleading without leaving it insulBcient. En. March 11, 1872. Cal. Rep. Cit. 84, 418. Prac. Act, sec. 66. En. April 29, 1851. Cal. Rep. Cit. 9, 500; 21, 3.50; 32, 456; 122, 164. Immaterial allegations need not be answered: See sec. 462. § 464. Supplemental complaint and answer. The plain- tiff and defendant, respectively, may be allowed, on motion, §§ I'lo. id variance:— MISTAKES. ICT to make a supplemental complaint or answer, allc^'lnj; facts material to the case occurring after the former complaint or answer. En. March 11, 1872. Cal. Rep. Cit. 54, 504; 60, 249; 98, 337; 102. G23; 109. 121; 127, 633. Prac. Act. sec. 67. En. April 29, 1851. Am'd. 1854. 60; 1860, 300; 1862. 563; 1866, 703. Cal. Rep. Cit. 1. 175; 12. 439; 25, 587; 28. 672; 33, 501; 36, 110; 38. 541. Amendments to pleadings: Post, sees. 472. 473. § 465. Pleadings subsequent to complaint must be filed and served. All plcaflincs sub-sonuent to the complaint must be filod with the clerk, and copies thereof served upon the adverse party or his attorney. En. March 11, 1872. Am'd. 1873-4, 301. Cal. Rep. Cit. 60, 205; 67, 432; 114, 475; 136. 303; 139, 717. Service of papers: Sees. 1011 et seq. Amendment of pleadings, service of: Post, sees. 472; ante, 432. Extending time to serve papers: See post, sec. 1054. CHAPTER VIII. VARIANCE— MISTAKES IN PLE.\DINGS AND AMENDMENTS. § 469. Material variances, how provided for. § 470. Immaterial variance, how provided for. § 471. What not to he deemed a variance. § 472. Amendments of course, and effect of demurrer. § 47J. Amen-.iments by the court. Enlarging time to plead and reliev- ing from judgment, etc. § 474. Suing a party by a fictitious name, when allowed. S 475. No error or defect to be regarded unless It aitects substantial rights. 5 476. Time to amend or answer, running of. § 469. Material variances, how provided for. No vari- ance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the ad- verse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that a party has been so misled, the court may order the pleading to be ,59 VARIANCE— MISTAKES. §§ 470-472 amended, upon such terms as may be juKt. En. March 11, 1872. Am'd. 1873-4, 302. Cal Rep. Cit. 54, 441; 59, 576; 65, 525; 72, 507; 74, 297 75 362- 90 261; 94, 94; 95, 478; 98, 113; 102, 587 114 348- 116, 3.32; 116, 380; 116, 559; 119, 380; 120, 69 121* 172- 132, 401; 134, 418; 135, 48; 135, 87; 135, 569; ISg! 72;' 140, 320; 142, 144; 143, 134; 145, 494. Prac. Act, sec. 579. En. April 29, 1851. Cal. Rep. Cit. 31. 386. Immaterial variance: Post, sec. 470. Variance and failure of proof: Post, sec. 471. Immaterial errors, generally: See post, sec. 475. § 470. Immaterial variance, fiov/ provided for. Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs. En. March 11, 1872. Cal. Rep. Cit. 57, 336; 59, 576; 65, 620; 75 362; 85 508; 106 152- 116, 559; 121. 172; 121, 193; 130, 274; 132, 423; 132', 427; 142, 115; 142, 144; 143, 134; 147, 719. Variance, material: Ante, sec. 469; fatal: Post, sec. 471. § 471. What not to be deemed a variance. Where, how- ever the allegation of the claim or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance, within the last two sections, but a failure of proof. En. March 11, 1872. Cal Rep. Cit. 59. 576; 69, 87; 121, 172; 132, 423; 132, 427; 143, 134. Proof generally: Post, sees. 1824, 1869. Proof, failure of— dismissal for: Post, sec. 581, subd. 5. § 472. Amendments of course, and effect of demurrer. Any pleading may be amended once by the party of course, and without costs, at any time before answer or demurrer filed or after demurrer and before the trial of the issue or law thereon, by filing the same as amended, and serving a copy on the adverse party, who may have ten days there- after in which to answer or demur to the amended pleading A demurrer is not waived by filing an answer at the same time- and when the demurrer to a complaint is overruled. S 473 VAHIANCE-MISTAKES. 17» and thore is no answer filed, the court may, upon surh terms as may be just, allow an answer to be filed. If a demurrer to the answer be overruled, the facts alleged in the answer must be considered as denied to the extent mentioned in section 462. En. March 11, 1872. Am'd. 1873-4, 302. ■ Cal. Rep. Cit. 53, 294; 55, 516; 58, 94; 58, 97; 68, 616; 72, 521; 84, 218; 86, 399; 86, 6110; 106, 60; lOH, 72; 109, 121; 119, 72; 119, 108; 119, 304; 119, 413; 132, 423; 132, 424; 132, 427; 135, 480; 143, 134; 145, 212. Complaint, amended — filing: Sec. 432. Answer no waiver of demurrer: Ante, sec. 431. § 473. Amendments by the court. Enlarging time to plead and relieving from judgments, etc. The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court* may likewise, in its discretion, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code; and may, also, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; provided, that application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action. V/hen, in an action to recover the possession of personal property, the person making anr affidavit did not truly state the value of the property, ?nd the officer taking the property, or the sure- ties on any bond or undertaking, Is sued for taking the same, the officer or sureties may in their answer set up the true value of the property, and that the person in whose behalf said affidavit was made was entitled to the posses- sion of the same when said affidavit was made, or that the 171 VARIANCE-MISTAKES. § 473 value in the affidavit stated was inserted by mistake, tlie court shall disregard the value as stated in the affidavit, and give judgment according to the right of possession of said property at the time the affidavit was made. En. March 11, 1872. Am'd. 1873-4, 302; 1880, 2. Cal Rep. Cit. 48. 562: 51,119; 51,155; 56,250; 57,336; 'go 229- 60. 250;' 60, 253; 60, 366; 61, 296; 61, 298; 61 300; 61,301; 61,360; 62.282; 63,457; 63,477; 63 478- 64 14; 64. 430; 65, 370; 65. 371; 65, 397; 65' 495'; 66, 337; G7, 54; 67, 501; 68, 215; 68, 277; 68 371- 68, 372; 68, 401; 68, 423; 68, 606; 70, 235; 72' 218- 72 222; 72, 223; 72. 377; 73, 205; 73, 553; 74' 343- 74 344; 74. 403; 74, 404; 74, 405; 77. 307; 80' 200'; 80', 333; 82, 509; 82, 510; 83, 228, 83, 459; 84 111- 84 112; 84, 514; 84, 608; 85, 94; 85. 117; 86' 60-' 86, '496; 86, 563; 86, 596; 87, 154; 89, 337; 90' 19' 90. 564; 91. 322; 91. 587; 92, 201; 92, 350; 92' 355; 93, 389; 93, 511; 93, 512; 94, 43; 94, 44; 94' 545- 95 523; 96, 658; 96, 659; 97, 92. 97. 390; 97' 391' 97, 392; 97, 393; 97, 516; 97, 629; 97, 631; 97' 632- 98 250; 99, 625; 99, 626; 99, 627; 100, 92; 101 34-' 101 575; 102, 603; 102, 616; 102, 617; 103, 453; 103' 536- 10'4, 38; 108, 214; 108, 234; 109, 72; 1)9, 121; 109' 686- 109 687; 109, 690; 110, 504; 112, 117; 113, 342; 115' 101'' 116, 51; 116, 93; 116. 135; 116. 283; 116, 381; lis' 97-118, 360; 118, 592; 119, 107; 119, 109; 119, 110; 119' 3C6; 119, 589; 120, 37; 121, 416; 121. 418; 121. 419; 122' 109- 122 208; 122, 209; 123, 171; 123, 253; 123. 2d4; 123' 540'- 124 74- 124, 143; 124, 144; 125. 203; 126, 55; 126' 37'>' 127' 170; 128, 245; 128, 393; 128, 561; 129, 15; 129' 28^-' 1^9 311- 129, 312; 130, 390; 130, 514; 130, 667; 13l' 6I7'- 132, 8; 132, 423; 132, 424; 132, 427; 134, 127; 134' 198-' 134 383; 134, 384; 136, 390; 137. 139; 138, 26; 138 2'00'; 13'8, 300; 138, 642; 139, 591; 139, 592; 139, 650'; 139, 651; 140, 5; 140, 287; 140, 485; 140 674; 142 426- 143, 17; 143, 134; 143, 632; 143, 633; 143, 675'- 144 404- 145, 44; 145, 48; 145, 397;. 145, 562; 145 597; 146, 214; 146, 247; 146, 260; 146, 498; 147', 377; 147, 541. Prac. Act, sec. 68. En. April 29. 1851. Am'd. 1853. 276; 1860, 300; 1865-6, 843. cal. Rep. Cit. 1, 175; 1, 192; 3. 118; 3 134; 4, 281; 6. 174; 7, 32; 7, 280; 7 281;^ %o^%^!i S 9' 19 708; 19, 709; 21, 273; 27, 333; 28 338 28 i^^. 28. 652; 28, CT2; 29, 74; 29, 423; 32. 121; 34. 2G, §5 474, 473 VARIANCE— MISTAKES. VTt 34. 80; 34, 172; 34, 241; 34, 239; 36, 289; 39. 108; 39, 313; 40. 426; 41, 443; 43. 258; 43, 260; 47, 527; 49. 307; 49. 308; 57, 336; 58, 97; 72, 222; 74, 403; 85, 117; 97. 391; 99, 626; 139. 650. § 474. Suing a party by a fictitious name, when al- lowed. When the plaintiff is iRnorant of the name of a defendant, he must state that fact in the complaint, and such defendant may be dosisnated in any pleading or pro- ceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly. Fn March 11, 1872. Cal. Rep. Cit. 63, 119; 70, 25; 113. 500; 125, 104; 143, 134. Prac. Act, sec. 69. En. April 29, 1851. Cal. Rep. Cit. 40, 490; 40, 491; 42, 578. § 475. No error or defect to be regarded unless it affects substantial rights. The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or procee-dings which, In the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless It shall appear from the record that such error, ruling, Instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown. En. March 11, 1872. Am'd. 1897, 44. Cal. Rep. Cit. 48. 354; 52. 184; 57, 619; 61, 305; 63, 34 64, 24; 65, 390; 66, 58; 67, 4; 68, 274; 68, 616 71, 185; 71, 191; 72, 20; 72, 556; 73, 189; /3, 553 76, 280; 76, 632; 77, 94; 78, 492; 79, 208; 79, 586 82, 337; 82, 424; 84, 201; 88. 452; 89, 506; 90. 94 95 295; 96. 77; 96, 402; 97, 597; 101, 312; 106. 152 111 686; 112, 227; 113. 536; 115, 277; 115. 372; 116, 600 117,25; 121,172; 123,346; 126,325; 128,245; 128,268 128 526; 129. 202; 129, 272; 130, 496; 132, 196; 133, 449 135', 35; 135. 48; 135, 569; 136, 71; 138, 452; 140, 591 145, 285; 145, 495; 147, 508. Prac. Act. sec. 71. En. April 29, 1851. Cal. Rep. Cit. 28, 265; 32, 14; 37, 336; 39, 175; 41. 317. Similar provision in Pen. Code, sees. 1258, 1404. 173 ARREST AND BAIL. § 476 § 476. Time to amend or answer, running of. When a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order. En. Slats. 1873-4, 304. Cal. Rep. Cit. 52, 338; 58, 9G; 77, 151; 95, 3G7; 99, 176; 116, 51; 129, 250. Time to answer: Ante, sees. 432, 472, 473. Notice, service of: Sees. 1010 et seq. TITLE VII. OP THE PROVISIONAL REMEDIES IN CIVIL ACTIONS. Chapter I. Arrest and Bail, § § 478-504. II. Claim and Delivery of Personal Property, §§ 509-521. ni. Injunction, §§ 525-533. IT. Attachment, §§ 537-559, V. Receivers, §§ 564-569. VI. Deposits in Court, §§ 572-574. CHAPTER I. ARREST AND BAIL. ( 478. No person to be arrested except as prescribed by this code. § 479. Cases In which defendant may be arrested. § 4S0. Order for an est, by whom made. § 481. Affidavit to obtain order, what to contain. § 482. Security by plaintiff before order of arrest. § 4S3. Order, when made and its form. § 484. Affidavit and order to be delivered to the sheriff, and copy t» defendant. 5 485. Arrest, how made. § 486. Defendant to be discharged on bail or deposit. § 487. Ball, how given. § 4S8. Surrender of defendant. § 489. Same. § 490. Bail, how proceeded against. § 491. Bail, how exonerated. § 492. Delivery of undertaking to plaintiff, and Its acceptance or re- jection by him. § 493. Notice of justification. New undertaking, If other ball. § 494. Qualification of bail. § 495. Justification of bail. § 496. Allowance of bail. § 497. Deposit of money with sheriff. § 488. Payment of money into court by sheriff. § 499. Substituting bail for deposit. I 500. Money deposited, how applied or disposed of. I 501. Sheriff, when liable as bail, and his discharge from liability. § .t02. Proceedings on judgment against sheriff. § ;03. Motion to vacate order of arrest or reduce bail. Affidavits on motion. ^ 504. When the order vacated or bail reduced. §§ 47S, 479 ARREST AND RAIL. IW § 478. No person to be arrested except as prescribed by this code. No jxTson can be arrtstod in a civil action, except as r.icscribed in this code. En. March 11, 1S72. Cal. Rep. Cit. 49, 4GC; 101. 334; 120, 317. Prac. Act, sec. 72. En. April 29, 1851. Cal. Rep. Cit. 5, 283; 3G, 1G7. Exemption from arrest — Constitutional provisions. — Im- prisonment for debt, except for fraud, and in civil actions for torts, except in cases of willful injury to person or property, abolished: Art. 1, sec. 15. .Members of legisla- ture exempted from arrest: Art. 4, sec. 11. Electors are privileged on election day while in attendance at an elec- tion: Art. 2, se<;. 2. No person to be imprisoned for a militia fine in time of peace: Art. 1, sec. 15. Cotle provisions. — Electors are privileged from arrest on election days, being the same in effe<>t as the constitutional provision above: Pol. Code, sec. 10C9. Persons belonging to the military forces, while in attendance for military duty, are also exempt from arrest on civil process: Pol. Code, sec. 2021. Females privileged from arrest in civil actions, at least in justices' courts: Post, sec. 861. Witnesses are likewise privileged: Post, sec 2007. Arrest in justices' court: Post, sees. 801 et seq. § 479. Cases ip which defendant may be arrested. The defendant may be arrested, as hereinafter prescribed, ia the following cases: 1. In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the state with intent to defrau'd his creditors. 2. In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied, or con- verted to his own use, by a public officer, or an officer of a corporation, or au attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity; or for misconduct or neglect in office, or in a professional employment, or for a willful violation of duty. 3. In an action to recover the possession of personal property unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of, to pre- vent its being found or taken by the sheriff. 4. "When the defendant has been guilty of a fraud in con- tracting the debt or incurring the obligation for which the action is brought, or in concealing or disposing of tho i)rop- erty for the taking, detention, or conversion of which the action is brought 175 ARREST AND BAIL. §§ iS0-4S3 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. En. March 11, 1872. Am'd. 1873-4, 304. Cal. Rep. Cit. 120, 317; 130, 68; 138, 250. Subd. 1—130, 67. Subd. 2—130, 650. Subd. 3—130, 69. Subd. 5— 130, 67. Prac. Act, sec. 73. En. April 29, 1851. Cal. Rer Cit. 6, 240; 42, 20. § 480. Order for arrest, by whom made. An order for the arrest of the defendant must be obtained from a judge of the court in which the action is brought. En. March 11, 1872. Am'd. 1880, 3. Cal. Rep. Cit. 130, 69. Prac. Act, sec. 74. En. April 29, 1851. Cal. Rep. Cit 1, 345; 1, 440. § 481. Affidavit to obtain order, what to contain. The order may be made whenever it appears to the judge, by the affidavit of the plaintiff, or some other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section four hundred and seventy- nine. The affidavit must be either positive or upon infor- mation and belief, and when upon information and belief, it must state the facts upon which the information and belief are founded. If an order of arrest be made, the affi- davit must be filed with the clerk of the court. En. March 11, 1872. Am'd. 1873-4, 305. Cal. Rep. Cit. 59, 190; 120, 317; 120, 321; 130, 68. Prac. Act, sec. 75. En. April 29, 1851. § 482. Security by plaintiff before order of arrest. Be- fore making the order, the judge must require a written undertaking on the part of the plaintiff, with sureties in an amount to be fixed by the judge, which must be at least five hundred dollars, to the effect that the plaintiff will pay all costs A hich may be adjudged to the defendant, and all damages which he may sustain '^y reason of the arrest, if the same be wrongful, or without sufficient cause, not ex- ceeding the sum specified in the undertaking. The under- taking must be filed with the clerk of the court. En. March 11, 1872. Am'd. 1873-4, 305. Prac. Act, sec. 76. En. April 29, 185i. {S 48S-487 ARRKST AND BAH.. Mt Undertakings, generally: Ante, sec. 105'. Court commis- sioner's power to take: Ante, sec. 259. § 483. Order, when made and its form. Tlie order may be made at the time of the issuing of the summons, or any time afterwards before judgment. It must require the sheriff of the county where the defendant may be found, forthwith to arrest him and hold Im 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. En. March 11, 1872. Cal. Rep. Cit. 59, 190; 130, 69. Prac. Act, sec. 77. En. April 29, 1851. § 484. Affidavit and order to be delivered to the sheriff, and copy to defendant. The order of arrest, v.itli a copy of the affidavit upon which it Is made, mus' be delivered to the sheriff, who, upon arresting the defendant, must de- liver to him a copy of the affidavit, and also, if desired, a copy of the order of arrest. En. March 11, 1872. Prac. Act, sec. 78. En. April 29, 1851. Sheriflf's duties. — To excuse omission by sheriff, direction by party or attorney must be in writing: Pol. Code, sec. 4185. § 485. Arrest, how made. The sheriff must execute the order by arresting the defendant and keeping him in cus- tody until discharged by law. En. March 11, 1872. Prac. Act, sec. 79. En. April 29, 1851. "Production of process upon request: Pol. Code, sec. 4188. § 486. Defendant to be discharged on bail or deposit. The defendant, at any time before execution, must be dis- charged from the arrest, either upon giving bail or upon depositing the amount mentioned in the order of arrest. En. March 11, 1872. Prac. Act, sec. 80. En. April 29, 1851. § 487. Ball, how given. The defendant may give ball bj' causing a written undertaKing to be executed by tv/o or more sufficient sureties, to the effect that they are bound In the amount mentioned in the order of arrest, that the m ARREST AN DBAIL. §§ 4SS-491 defendant will at all times render himself amenable to the process of Tae court during the pendency of the action, and to such as may be issued to enZcrce the judgment therein, or that they will pay to the plaintiff the amount of any judgment wiiich may be recovered in the action. En. March 11, 1872. Cal. Rep. CIt. 130, 650. Prac. Act, sec. 81. En. April 29, 1851. Bail— Qualifications of: Post, sees. 494, 1057. § 488. Surrender of defendant. At any time before judgment, or within ten days thereafter, the bail may sur- render the defendant in their exoneration; or he may sur- render himself to the sheriff of the county where he was arrested. En. March 11, 1872. Prac. Act, sec. 82. En. April 29. 1851. § 489. Same. For the purpose of surrendering the de- fendant, the bail, at any time or place before they are finally charged, may themselves arrest, or, by a written authority indorsed on a certified copy of the undertaking, may empower the sheriff to do so. Upon the arrest of defendant by the sheriff, or upon his delivery to the sheriff by the ball, or upon his own surrender, the bail are ex- onerated, ii such arrest, delivery, or surrender take place before the expiration of ten days after judgment; but if Buch arrest, delivery, or surrender be not made within ten days after judgment, the ball are finally charged on their undertaking, and bound to pay the amount of the. judg- ment within ten days thereafter. En. March 11, 1872. Prac. Act, sec. 83. En. April 29, 1851. § 490. Bail, how proceeded against. If the ball neglect or refuse t i pay the judgment within ten days after they are finally charged, an action may be commenced against such bail for the amount of the original judgment. En. March 11, 1872. Prac. Act, sec. 84. En. April 29, 1851. Am'd. 1854, 60. § 491. Ball, how exonerated. Tne ball are exonerated by the death of the defendant, or his imprisonment in a state prison, or bv his legal discharge from the o'ohgation to render himself amenable to the process. En. March 11, 1872. Prac. Act, sec. 85. En. April 29, 1851. Code ClvU Proc— 12. SS 492-494 AKREST AND BAIU 178 § 492. Delivery of undertaking to plaintiff, and Its ac- ceptance or rejection by iiim. "Within the time limited for that purpose, the sheriff must file the order of arrest In the office of the clerk of the court in which the action is pend- ing, with his return Indorsed thereon, together with a copy of the undertaking of the ball. The original undertaking he must retain in his possession until filed, as herein pro- vided. The plaintiff, within ten days thereafter, may serve upon the sheriff a notice that he does not accept the ball, or he is deemed to have accepted them, and the sheriff is exonerated from liability. If no notice be served within ten days, the original undertaking must be filed with the clerk of the court. En. March 11, 1872. Prac. Act, sec. 86. En. April 29, 1851. 5 493. Notice of Justification. New undertaking, If other bail. Within five days after the receipt of notice, the sheriff or defendant may give to the plaintiff, or his at- torney, notice of the justification of the same, or other bail (specifying the places of residence and occupations of the latter), before a judge of the court, 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 consent of parties. In case other bail be given, there must be a new undertaking. En. March 11, 1872. Am'd. 1880, 3. Prac. Act, sec. 87. En. April 29, 1851. Justification of bail: See sec. 495, infra. § 494. Qualification of ball. The qualifications of ball are as follows: 1. Each of them must be a resident and householder, or freeholder, within the state. 2. Each must be worth the amount specified in the order of the arrest, or the amount to which the order is reduced, as provided in this chapter, over and above all his debts and liabilities, exclusive of property exempt from execution; but the judge or county clerk, on justification, 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 sufficient bail. En. March 11, 1872. Am'd. 1873-4. 306. Prac. Act, sec. 88. En. April 29, 1851. Qualifications — of bail: Post, sec. 1057. 179 ARREST AND BAIL. §§ 495-498 § 435. Justification of bail. For the purpose of justifi- cation, each of the bail must attend before the judge or county clerli, at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his suflBciency, in such manner as the judge or clerk, in his discretion, may think proper. The examin- ation must be reduced to writing, and subscribed by the bail, if required by the plaintiff. En. March 11, 1872. Prac. Act, sec. 89. En. April 29, 1851. Justification: Ante, sec. 259, subd. 3. § 496. Allowance of bail. If the judge or clerk find the bail sufficient, he must annex the examination to the un- dertaking, indorse his allowance thereon, and cause them to be filed, and the sheriff is thereupon exonerated from liability. En. March 11, 1872. Cal. Rep. Cit. 62, 544. Prac. Act, sec. 90. En. April 29, 1851. Court commissioners — powers as to bail: Ante, sec. 259, subd. 3. § 497. Deposit of money with sheriff. 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 must give the de- fendant a certificate of the deposit made, and the defendant must be discharged from custody. En. March 11, 1872. Cal. Rep. Cit. 51, 217. Prac. Act, sec. 91. En. April 29, 1851. § 498. Payment of money into court by sheriff. The sheriff must, immediately after the deposit, pay the same into court, and take from the clerk receiving the same two certificates of such payment, the one of which he shall deliver to the plaintiff's 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. En. March 11, 1872. Prac. Act, sec. 92. En. April 29, 1851. Sheriff — Penalty for nonpayment: Pol. Code, sec. 4181. §§ 4M r,0! ARHEST AND BAIU MO § <99. Substituting bail for deposit. If money Is depos- ited, as provided in the two last sertions, bail may be given, and may justify upon notice, at any time before judgment; and on the filing of the uii'dertaking and justi- fication with the clerk, the money deposited must be re- funded to the defendant. En. March 11, 1872. Prac. Act, sec. 93. En. April 29, 1S51. § 500. Money deposited, how applied or disposed of. Whore money has been deposited, if it remain on deposit at the time of the recovery of a judgment in favor of the plaintiff, the clerk must, under the direction of the court, apply the same in satisfaction thereof, and after satisfying the judgment, refund the surplus, if any, to the defend- ant. If the judgment is in favor of the defendant, the clerk must, under like direction of the court, refund to him the whole sum deposited and remaining unapplied. En. March 11, 1872. Prac. Act, sec. 94. En. April 29, 1851. § 501. Sheriff, when liable as bail, and his discharge from liability. If, after being arrested, the defendant es- cape or is rescued, the sheriff is liable as bail; but he may discharge 'himself from such liability by the giving bail at any time before judgment. En. March 11, 1872. Prac. Act, sec. 95. En. April 29, 1851. Cal. Rep. Cit. 27, 494. Rescue, liability of sheriff permitting: See Pol. Code, Bees. 4183, 4184. Escape, liability of sheriff permitting: Bee Pol. Code, sees. 4182, 4184. § 502. Proceedings on judgment against sheriff. If a judgment is recovered against the sheriff, upon his liability as bail, and an execution thereon is 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 delinquency. En. March 11, 1872. Prac Act, sec. 96. En. April 29, 1851. 181 CLAIM AND DELIVERY. §§ 503-509 § 503. Motion to vacate order of arrest or reduce bail. Affidavits on nnotion. A defendant arrested may, at any- time before the trial of the action, or if there be no trial, before the entry of judgment, apply to the judge who made the order, or the court in which the action is pending, upon reasonable notice, to vacate the order of arrest or to reduce the amount of bail. If the application be made upon afhdavits 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 which the order of arrest was made. En. March 11, 1872. Am'd. 1873-4, 306. Prac. Act, sec. 97. En. April 29, 1851. § 504. When the order vacated or bail reduced. If, upon such application, it appears that there was not suffi- cient cau-^-e for the arrest, the order must be vacated; or if it appears that the bail was fixed too high, the amount must be reduced. En. March 11, 1872. Prac. Act, sec. 98. En. April 29, 1851. CHAPTER II. CLAIM AND DELIVERY OF PERSONAL PROPERTY. 5 509. Delivery of personal property, when It may be claimed. § 510. Affidavit and its requisites. § 511. Requisition to sheriff to take and deliver the property. § 612. Security on the part of the plaintiff and proceedings in serving the order. { 513. Exception to sureties and proceedings thereon, or on failure to except. § 514. Defendant, when entitled to redelivery. § 515. Justification of defendant's sureties. § 516. Qualification of sureties. § 517. Property, how taken, when concealed In building or Inclosure. § 518. Property, how kept. § 519. Claim of property by third person. § 520. Notice and aflidavit, when and where to be filed. S 521. Actions on unviertaking. (Repealed.) § 509. Delivery of personal property, when it may be claimed. The plaintiff in an action to recover the pos- 5§ .-.10-512 CLAIM AND DKl.n'ERT. 182 snssinn of personal property may, at the time of issuing the summons, or at any time before answer claim the delivery of surh proprrty to him, as provided in this chapter. En. March 11, 1S72. Cal. Rep. Cit. Gl, 97; C6, 487; 88, 203; 94, IOC; 130, 2C3; 130, 264. Prac. Act, sec. 99. En. April 29, 1851. Judsroent: Post, sees. 627, CG7. Verdict in actions for recovery of specific personalty: Post, sec. 627. Sections made applicable to justice's court: Post, sec. 870. § 510. Affidavit and its requisites. Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one in his b-rhalf, showing: 1. That the plaintiff is the owner of the property claimed (particularly describing it), or is entitled to the possession thereof; 2. That the property is wrongfully detained by the defendant; 3. The alleged cause of the detention thereof, according to his best knowledge, information and belief; 4. That it has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution or an attachment a'gainst the property of the plaintiff; or if BO seized, that it is by statute exempt from such seizure; 5. The actual value of the property. En. March 11, 1872. Cal. Rep. Cit. 53, 743; 61, 97; 72, 331; 76, 289. Prac. Act, sec. 100. En. April 29, 1S51. Subdivision 5. Value — incorrectly stated in affidavit: Ante, sec. 473. § 511. Requisition to sheriff to take and deliver the property. The plaintiff or his attorney may, thereupon, by an indorsement in writing upon the affidavit, require the sheriff of the county where the property claimed may be, to take the same from the defendant. En. March 11, 1872. Cal. Rep. Cit. 53, 743; 76, 289; 145, 543. Prac. Act, sec. 101. En. April 29, 1851. Am'd. 1854, 60. Cal. Rep. Cit. 7, 571. § 512. Security on the part of the plaintiff and proceed- ings in serving the order. Upon a receipt of the affidavit 183 CLAIM AND DELIVERY. 9 513 and notice with a written undortjiking, executed by two or more sufficient sureties, approved by the sheriff, to the effect that they are bound to the defendant in double the value of the property, as stated in the affidavit for the prosecution of the action, for the return of the property to the defendants, 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 must 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 must, without delay, serve on the defend- ant 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 suit- able age and discretion, or if neither have any known place of abode, by putting them in the nearest post-office, directed to the defendant. En. March 11, 1872. Cal. Rep. Cit. 53, 743; 76, 289; 86, 648; 103, 310. Prac. Act, sec. 102. En. April 29, 1851. Am'd. 1854, 61. Cal. Rep. Cit. 7, 571; 21, 279. Sheriff's duties: Pol. Code, sees. 4185, 4188, and gen- erally, sees. 4175-4193. Qualifications of sureties: Ante, sec. 494; post, sec. 1057. Return of property to defendant — verdict for: Sec. 627; judgment for: Post, sees. 627, 667. Dismissal of action — Clerk is to hand undertaking to defendant: Post, sec. 581, subd. 1. Officer executing process must produce same on request: Pol. Code, see. 4188. Value stated in affidavit is not conclusive evidence against sheriff or sureties: Ante, sec. 473. § 513. Exception to sureties and proceedings thereon, or on failure to except. The defendant may, within two days after the service of a copy of the affidavit and under- taking, give notice to the sheriff that he excepts to the suffi- ciency of the sureties. If he fails to do so, he is deemed to have waived all objections to them. When the defendant excepts, the sureties must justify on notice in like man- ner as upon bail on arrest; and the sheriff is responsible §; :,14, 515 CLAIM AND DELn'ERY. 184 for the sufficiency of the sureties until the objection to them is cither waived or until they justify. If the defond- ant except to the sureties, he cannot reclaim the property as provided in the next section. En, March 11, 1872. Cal. Rep. Cit. 72, 331. Prac. Act, sec. 103. En. April 29, 1851. Justification of sureties: See ante, sees. 494, 495; post, sec. 1057. § 514. Defendant, when entitled to redelivery. At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff 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 re- quired within five days after the taking and service of no- tice to the defendant, it must be delivered to the plaintiff, except as pr&vided in section 519. En. March 11, 1872. Cal. Rep. Cit. 53, 743; 65, 339; 72, 331; 84, 55; 84, 50; 88, 205; 91, 291. Prac. Act, sec. 104. En. April 29, 1851. Cal. Rep. Cit. 7, 570; 24, 149. As to undertakings generally: See sec. 941. Qualifications of sureties: Sec. 1057. § 515. Justification of defendant's sureties. The de- fendant's sureties, upon notice to the plaintiff of not less than two or more than five days, must justify before a judge or county clerk, in the same manner as upon bail on arrest; and upon such justification the sheriff must de- liver the property to the defendant. The sheriff is responsi- ble for the defendant's sureties until they justify, or until the justification is completed or waived, and may retain the property until that time. If they, or others in their place, fail to justify at the time and place appointed, he 185 CLAIM AND DELIVERT. §§ 516-519 must deliver the property to the plaintiff. En. March 11, 1872. Cal. Rep. Cit. 84, 56; 87, 348. Prac. Act, sec. 105. En. April 29, 1851. § 516. Qualification of sureties. The qualification of sureties must be such as are prescribed by this code, in re- spect to bail upon an order of arrest. En. March 11, 1872. Cal. Rep. Cit. 64. 615. Prac. Act, sec. 106. En. April 29, 1851, Sureties — Qualifications of: Sec. 1057, post, and ante, sees. 494, 495. § 517. Property, how taken, when concealed in building or inclosure. If the property, or any part thereof be con- cealed in a building or inclosure, the sheriff must publicly demand its delivery. If it be not delivered, he must cause the building or inclosure 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. En. March 11, 1872. Cal. Rep. Cit. 64, 615. Prac. Act, sec. 107. En. April 29, 1851. Duties of sheriff: See Pol. Code, sees. 4175 et seq. § 518. Property, how kept. When the sheriff has taken property, as in this chapter provided, he must keep it in a secure place, and deliver it to the party entitled thereto, upon receiving his fees for taking and his necessary ex- penses for keeping the same. En. March 11, 1872. Prac. Act, sec. 108. En. April 29, 1851. § 519. Claim of property by third person. If the prop- erty taken be claimed by any other person than the de- fendant or his agent, and such person make afBdavit of his title thereto, or right to the possession thereof, stating the grounds of such title or right, and serve the same upon the sheriff", the sheriff is not bound to keep the property or deliver il; to the plaintiff, unless the plaintiff, on demand of him or his agent, imdemnify the sheriff against such claim, by an undertaking, by two sufficient sureties; and no claim to such property by any other person than the §§ 520-525 INJUNCTION. IM defendant or his agent is valid against the sheriff unless so made. En. March 11, 1872. Cal. Rep. Cit. 72, 331. Prac. Act, sec. 109. En. April 29, 1851. § 520. Notice and affidavit, when and where to be filed. The sheriff must file the notice, undertaldn.c:, and afridavit, with his proceedings thereon, with the cleric of the court in which the action is pending, within twenty days after taking the property mentioned therein. En. March 11, 1872. Cal. Rep. Cit. 101, 315; 130, 263. Prac. Act, sec. 110. En. April 29, 1851. Am'd. 1854, 61. § 521. Actions on undertaking. (Repealed.) En. March 11, 1872. Rep. 1873-4, 30G. CHAPTER III. INJUNCTION. § 525. Injunction, what It Is and who may grant It. § 526. When It may be granted. § 527. At what time It may be granted, and what Is required to tib- taln It. § 528. Injunction after answer. § 529. Security upon Injunction. § 530. Order to show cause why Injunction should not be granted. J 531. Injunction to suspend business of a corporatloB, how and by whom granted. § 532. Motion to vacate or modify Injunction. § 633. When to be vacated or modlfle'd. § 525. Injunction, what it is and who may grant it. An injunction is a writ or order requiring a person to re- frain from a particular act. It may be granted by the court in which the action is brought, or by a judge thereof, and when made by a judge, it may be enforced as an order of the court. En. March 11, 1872; 1880, 3. Cal. Rep. Cit. 81, 150; 136, 121; 146, 32. Prac. Act, sec. 111. En. April 29, 1851. Cal. Rep. Cit. 33, 389. Injunction — Disobedience to is contempt: Post, sees. 1209, 1210; limitations, how affected by: Ante, sec. 356; 1S7 INJUNCTION. S 526 proceedings to obtain: Post, sees. 527 to 531; vacating or modifying: Ante, sees. 532, 533. A seal is necessary to a writ: Sec. 152, subd. 1. Courts and judges— Power to grant injunction, on any- day: Ante, sees. 76, 134; at chambers: Ante, sec. 166; court commissioners not empowered to issue: Ante, sec. 258, subd 1. § 526. When it may be granted. An injunction may be granted in the following cases: 1. '^Tien it appears by the complaint that th« plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually; 2. When it appears by the complaint or affidavit that the commission or continuance of some act during the liti- gation would produce waste, great or irreparable injury to the plaintiff; 3. When it appears during the litigation that the de- fendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual. En. March, 11, 1S72. Cal. Rep. Cit. 53, 730; 64, 473; 113, 276; 114, 125; 136, 122. Subd. 2—118, 289. Prac. Act, sec. 112. En. April 29, 1851. When granted generally: Civ. Code, sees. 3422 et seq. Where the obligation arises from a trust: Civ. Code, sec. 3422. Illegal payments by county, enjoining: See Pol. Code, sec. 4001. Enjoinin-g nuisance: Sec. 731, post. Trademark, use of enjoined: Pol. Code, sec. 3199. Mortgage — Injunction to restrain party in possession from waste during foreclosure suit: Sec. 745. Disobeying order or process, contempt, etc.: Sees. 1209, 1210. An act to limit the meaning of the word conspiracy and the use of restraining orders and injunctions in disputes §§ 027-529 INJUNCTION. U« between employer and employee was approved March 20, 1903: Stats VJOS, c. 235. This act is set forth in Penal Code, Appendix, title Conspiracy. § 527. At what time it may be granted, and what is required to obtain it. The injunction may bo Krantod at the time of issuing the summons upon the complaint, and at any time afterward, before judgment, upon afiltlavits. The complaint in the one case, ami the affidavit in the other, must show satisfactorily that .sufficient grounds exist tlif^refor. No injunction can be granted on the com- plaint unless it is verified. When granted on the complaint, a copy of the complaint and verification attached must be served with the injunction; when granted upon affidavit, a copy of the affidavit must be served with the injunction. No injunction granted prior to the actual trial of the cause wherein it is g^ranted shall continue in force for a longer period than twelve months from the time such injunction was granted, except by consent of the parties, or unless the cause be set for trial upon its merits. En. March 11, 1872. Am'd. 1895, 51. Cal. Rep. Cit. 129, CI; 132, 325. Prac. Act, sec. 113. En. April 29, 1851. Cal. Rep. Cit. 19, 34; 20, 82; 35, 58; 35, 59. Complaint — Verificatibn of: Ante, sec. 446. Service by she. iff: See sheriff's duties, Pol. Code, sees. 4175-4193. § 528. Injunction after answer. An injunction cannot be allowed after the defendant has answered, unless upon notice, or upon an order to show cause; but in such case the defendant may be restrained until the decision of the court or judge granting or refusing the injunction. En. March 11, 1872. Cal. Rep. Cit. 146, 33. Prac. Act, sec. 114. En. April 29, 1851. § 529. Security upon injunction. On granting an in- junction, the court or judge must require, except when the people of the state, a county, or rounicipal corporation, or a married woman in a suit against her husband, is a party plaintiff, a written undertaking on the part of the plaintiff, 189 INJUNCTION. { 630 with sTifficient sureties, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as such party may sustain by reason of the injunction, if the court finally decide that the plaintiff was not entitled thereto. Within five days after the service of the injunction, the defendant may except to the sufficiency of the sureties. If he fails to do so, he Is deemed to have waived all objections to them. When excepted to, the plaintiff sureties, upon notice to the defendant of not less than two nor more than five days, must justify before a judge or county clerk in the same manner as upon ball on arrest, and upon failure to justify, or if others in their place fall to justify at the time and place appointed, the order grantin'g an Injunction shall be dissolved. En. March 11, 1872. Am'd. 1873-4, 405; 1880, 62. Oal. Rep. Clt. 54, 83; 64, 626; 77, 485; 92, 147; 97, 643; 146, 32. Prac. Act, sec. 115. En. April 29, 1851. Undertakings, returned on dismissal: Post, sec. 581, subd. 1. Sureties, qualifications of: Post, sec. 1057; justification of: Ante, sec. 495. Court commissioners, power to take bonds and under- takings, examine suieties, etc.: Sec. 259, subd. 3. § 530. Order to show cause why Injunction should not be granted. If the court or judge deem it proper that the defendant, or any of several defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown, at a specified time and place, why the injunction should not be granted; and the defend- ant may, in the mean time, be restrained. In all actions pending or which may be hereafter brought, when an Injunction or restraining order has been or may be granted, or applied for, to prevent the diversion pending the litigation, of water used or to be used for irri-gation or domestic purposes only, if it be made to appear to the court that the plaintiff is entitled to the injunction, but that the issuance thereof pending the litigation will entail great damage upon the defendant, and that plaintiff can be fully compensated for such damages as he may suffer, the court mav refuse the injunction upon the defendant giving a bond, such as Is provided for In section 532; and upon 55 ^Sl. f.^2 I^^MI'NCTION. 1» fhf> trill Hio samo proreetllnffs shall he harl, and with thf" samp fffect as in said section provitlod. En. March 11, 1S72. Am'd. 1887, 241. Cal. Rep. Clt. G4, 297; 70, 8G; 75, 441; 101, 218; 110, 438; 146, 38. Prac. Act. sec. IIG. En. April 29, 1851. Cal. Rop. Clt. 15. 109. 8 531. Injunction to suspend business of a corporation, how and by whom granted. An Injuncllnn to suspend tlie grnoral and ordinary business of a corporation cannot 1)0 grantod except b> the court or a Judge thereof; nor can It be granted without due notice of the application thrrofor to the proper ofUcers or mana^^ing agent of the corpor; - tlon, except when the people of this state are a party to the proceeding. En. March 11, 1872. Cal. Rep. Clt. 65, 189; 66. 103; 66, 314; 110, 145; 125. 299. Prao. Act, BBC. 117. Kn. April 29, 1851. Am'd. 1866, 703. § 532. Motion to vacate or modify Injunction. If an Injunction be granted without notice, the dft'endant at any time before the trial, may apply, upon reasonable notice to the Judge who granted the Injunction, or to the court In which the action Is brought, to dissolve or modify the same. The application may be made upon the complaint and the affidavit on which the Injunction was granted, or upon affidavit on the part of the defendant, with or without the answer. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence In a-ddition to those on which the Injunction was granted. In all actions pending, or which may be hereafter brought, when an injunction or restraining order has been or may be granted or applied for, to prevent the diversion, pending the litigation, of water used or to be used for irrigation or domestic purposes only, if it be made to appear to tho court that great damage will be suffered by the defendant In case the injunction is continued, and that the plaintiff can be fully compensated for any damages he may suffer by reason of the continuance of the acts of the defendant "during the pendency of the litigation, the court, in Its dis- cretion, may dissolve or modify the injunction, upon the defendant ^ving a bond, with sureties to be approved by 191 INJUNCTION. § 533 the judge, and in snch amount as may be fixed by the court or judge' conditioned that the defendant will pay all damages which the plaintiff may suffer by reason of the continuance during the litigation of the acts complained of. Upon the trial the amount of such damages shall be ascertained, and In case Judgment is rendered for the plaintiff the amount fixed as such damages shall be in- cluded in the judgment, together with reasonable attor- ney's fees Upon a suit brought on the bond the amount of "-damages as fixed In said judgment shall be conclusive upon the sureties. En. March 11, 1872. Am'd. 1887, 241. Cal. Rep. CIt. 72. 271; 72, 275; 133. 337; 134. 377; 147. 724. Prac. Act. sec. 118. En. April 29, 1851. Cal. Rep. Cit. 12, 448; 16, 85; 33, 390; 33. 391; 34, 34; 35, 58; 35, 59. Vacating orders maxle out of court: Post, sec. 937. § 533 When to be vacated or modified. If upon such application it satisfactorily appear that there Is not suf- ficient ground for the Injunction, It must.be dissolved; or If It satisfactorily appear that the extent of the injuncUoa is too great, it must be modified. En. March 11, 1871 Cal. Rep. CIt. 103, 644. Prac. Act, sec. 119. En. April 29, 1851. I 63t ATTACHMENT. » CHAPTER IV. ATTACHMICNT. I 637. Attachment, when and In what cases may Issae. I 538. Aflldavit for attachment, what to contain. { &3'J. I'tiilertaklnB on attachment. 9 WO. Writ, to whom directed and what to state. I Ml. Shares of stock and debts vlue defendant, how attachc* Debts and credita, etc., how attached: Post, sec. 512, Bubd. 5. Garnishment, generally: Post. sees. 543-545. S 542. How real and personal property shall be attached. The shoriff to whom the writ is directed and delivorpd, must execute the same without delay, and if the undertak- ing mentioned in section five hundi-cd and forty be not given, as follows: 1. Real property, standing upon the records of the county in the name of the defendant, must be attached, by filing with the recorder of the county a copy of the writ, together with a description of the property attached, and a notice that it is attached; and by leaving a similar copy of the writ, description, and notice with an occupant of the property, if there is one; if not, then by posting the same in a con.spicuous place on the property attached. 2. Real property, or an Interest therein, belonging to the defendant, and held by any other person, or standing on the records of the county in the name of any other per- son, must be attached, by filing with the recorder of the county a copy of the writ, together with a description of the property, and a notice that such real property, and any Interest of the defendant therein, held by or standing In the name of .«;uch other person (naming him), are attached; end by leaving with the occupant, if any, and with such other person, or his agent, if known within the county, or at the residence of either, if within the county, a copy of the writ, with a similar description and notice. If there la no occupant of the property, a copy of the writ, together •with such description and notice, must be posted in a con- spicuous place upon the property. The recorder must in- dex such attachment when filed, in the names, both of the defendant and of the person by whom the property Is held or in whose name it stands on the records. 3. Personal property, capable of manual delivery, must be attached by taking it into custody. 4. Stocks or shares, or interest in stocks or shares, of any corporation or company, must be attached by leaving with the president, or other head of the same, or the secre- tary, cashier, or other managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the defendant is attached, in pursuance of such writ. 5. Debts and credits and other personal property, not capable of manual delivery, must be attached by leaving with the person owing such debts, or having in his posses- sion, or under his control, such credits and other personal ^ ATTACHMENT. §§ &13, 544 property, or with his agent, a copy of the writ, and a notice that the debts owing by him to the defendant, or the cred- its and other personal property in his possession, or under his control, belonging to the defendant, are attached m pursuance of such writ, except in the case of attachment o£ growing crops, a copy of the writ, together with a descrip- tion of the property attached, and a notice that it is at- tached, shall be recorded the same as in the attachment of real property. En. March 11, 1872. Am d. 1903, 1G7. Cal. Rep. Cit. 54, 342; 57, 195; 57 256; 96. 267; 101 227; 111 238- 119. 19S; 138. 194; 146, 742. Subd. 1—66, 208, 71 306-' 72 496; 80. 466; 88, 107; 99. 166; 99. 644; 119 193 144, 788 Subd. 2-72, 497; 144. 788. sibd. 3-57. 255; 111. 381; 115. 213; 131. 89; 133. 317. Subd 4-122. 469; 133. 317. Subd. 5-65. 303; 77, 655; 90, 568; 95, 531; 103. 655; 111. 235; 121. 351. Prac. Act. sec. 125. En. April 29, 1851. Am'd. 1862, 568. Cal Rep. Cit. 1. 96; 8, 26; 19. 44; 34, 87; 34. 607; 38. 153; 38, 154; 43. 579. Attachment lien, officer's: Civ. Code, f^; 3057; leviable Interest, in mortgaged property: Civ. Cjde. sees. 2968-2970. fraudulent transfers: Civ. Code. sees. 1227. 3431. 3439-42. 5 543. Attorney to give written instructions to sheriff what to attach. Upon receiving information in writing from the plaintiff or his attorney, that any Person has in MHossession or under his control any credits or other per- sonaTproperty belonging to the defendant, or is owing any S to tSe defendant, the sheriff must serve up<,n such per- son a copy of the writ and a notice that such credits or Ser Property, or debts, as the ca^e may be are attached, in pursuance of such writ. En. March 11. 187J. Cal. Rep. Cit. 90, 568; 108, 264. Prac. Act. sec. 126. En. April 29. 1851. Cal. Rep. Cit. 34. 298; 34. 299; 38, 153. § 544. Garnishment, when garnishee liable to Plalntiff All persons having in their possession or under i^eir con- frol anTcredits or other personal property belonging to the deienJaMor owin^. any debts to the defendan . at the time of service upon them of a copy of the writ and^otwe as provided in the last two sections, shall be, unless sum nronertv be delivered up or transferred, or ^ch debts be pSHoVe sheriff, liable to the plaintiff for the amount of 5§ &45, 51« ATTACHMKNT. 138 such credits, property, or debts, until the attichmrnt be discharged, or any jud^raent recovered by him be satis- fied. Bn. March 11, 1S72. Cal. Rep. Cit. 88. 52G; 90, 5C8; 109. 83; llC, 372; IIG, 374; 128. 1C5; 128, ICC; 128, 1G7; 138, 185; 138, 194; 144, 486. Prac. Act, sec. 127. En. April 29, 1851. Cal. Rep. Cit. 1, 96; 9, 2G6; 3S, C12; 1-14, 486. Similar provision as to execution: Post, sec. 716. § 545. Citation to garnishee to appear before a court or Judge. Any person owing debts to tlie defendant, or hav- ing in his possession or under his control any credits or other personal property belonging to the derendant, may be required to attend before the court or judge, or a referee appointed by the court or judge, and be examined on oath respecting the same. The defendant may also be required to attend, for the purpose of giving information respect- ing hi.s property, and may be examined on oath. The court or judge may, after such examination, order personal prop- erty, capable of manual delivery, to be delivered to the sheriff on such terms as may be just, having reference to any liens thereon or claims asrainst the same, and a memo- randum to be given of all other personal property, con- taining the amount and description thereof. En. March 11, 1872. Cal. Rep. Cit. 51, 317; 90, 5G8; 128, 165; 128, ICG; 128, 167; 133, 317. Prac. Act, sec. 128. En. April 29, 1851. Am'd. 1855, 197. Cal. Rep. Cit. 1, 9G; 9, 2G5; 9, 2G6; 34, 607. Compare, proceedings supplementary to execution: Post, sees. 714-721. § 546. Inventory, how made. Party refusing to give memorandum may be compelled to pay costs. The sheriff must make a full inventory of the property attached, and return the same with the writ. To enable him to make such return as to debts and credits attached, he must re- quest, at the time of service, the party owing the debt or having the credit to give him a memorandum, stating the amount and description of each; and if such memorandum be refused, he must return the fact of refusal with the writ. The party refusing to give the memorandum may be 199 ATTACHMENT, 5§ 547-549 required to pay the costs of any proceedings taken for the purpose of obtaining information respecting the amounts and description of such debt or credit. En. March 11. 1872. Cal. Rep. Cit. 58, 356; 90, 568; 128, lb6; 128, 167. Prac. Act, sec. 129. En. April 29, 1851. Return of writ, -generally: See infra, sec. 559. 8 547. Perishable property, how sold. Accounts with- out suit to be collected. If any of the property attached be perishable, the sheriff must sell the same in the manner in which such property is sold on execution The proceeds Tnd other property attached by him must be retained by h?m ?o answer any judgment that may be recovered in the acUon, unless sooner subjected to execution upon another tuSent recovered previous to the issuing of the attech- meST Debts and credits attached may be collected by Km if the same can be done without suit. The sher.rs receipt is a sufficient discharge for the amount paid. En. March 11, 1872. Cal. Rep. Cit. 135, 98; 135, 99. Prac. Act, sec. 130. En. April 29, 185L Cal. Rep. Cit. 1, 96; 9. 551. 8 548 Property attached may be sold as under execu- tion, If the interLt of the parties ;eq""-«- .^^^^/J^If nrooerty has been taken by an officer un-der a writ of attach- ment and ft is made to appear satisfactorily to the court S- a judge thereof, that the interest of the parties to the action ^v^ll be subserved by a sale thereof, the court or Se may order such property to be sold in the Bame man. ner L propertv is sold under an execution, and the pro- cSds to be deposited in the court, to abide the Dudgment f^the action Such order can be made only upon notice In the Idve^se party or his attorney, in case such party has been rersonSlly'served with a summons in the action. En. March 11, 1^72. Am'd. 1880, 4. Cal. Rep, Cit. 135. 99. 8 549 When property claimed by a third party, how trild' if Ty pei^on'al property attached be claimed^^^^^^ third person as his property, the same rules shall prevail as 5 5 •-». 551 ATTAOIMENT. Ml to the contents and makin.? of said claim, and aa to the holding of said property, as In case of a claim afttr levy upon execution, as provided for in se<'tion six hun«.lred and eii^hty-nine of the Code of Civil Procedure. En. March 11, 1872. Am'd. 1891. 20. Cal. Rep. Cit 97. 483: 117, 40; 122, 334; 126, 42; 142. 459. Prac. Act, sec. 131. En. April 29. 1851. Sureties on indemnity. — If sheriff gives to sureties no- tice of action brought against him, the sureties are liable on the Judgment: Post, sec. 1055. S 550. If plaintiff obtains judgment, how satisfied. If judgment be recoveicd by the plaintiff, the sheriff must satisfy the same out of the property attached by him •which has not been delivered to the defendant or a claim- ant as hereinbefore provided, or subjected to execution on another judgment, recovered previous to the issuing of the attachment. If it be suflBcient for that purpose: 1. By paying to the plaintiff the proceeds of all .««ales of perishable property sold by him, or of any debts or credits collected by him, or so much as shall be necessary to satisfy the judgment; 2. If any balance remain due. and an execution shall have been issued on the judgment, he must sell under the execution so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that pur- pose remain in his hands. Notices of the sales must be given, and the sales conducted as in other cases of sales on execution. En. M?rch 11, 1872. Cal. Rep. Cit 72, 70; 122, 471. Prac. Act, sec. 132. En. April 29, 185L Cal. Rep. Cit. 9, 551. Disposition of proceeds. — Action against sberifT for amount, and twenty-five per cent damages, and ten per cent per month interest, if he neglect to pay over moneys: Pol. Code, sec. 4181; peference, claim for labor, wages, etc, sec. 1206. Sales on execution: Post, sees. 692-709. § 551. When there remains a balance due, how col- lected. If, after selling all the property attached by him remaining in his hands, and applying the proceeds, to- gether with the proceeds of any debts or credits collected aOt ATTACHMEXT. §J 553-55* by him, deducting his fees, to the payment of the judgment, any balance shall remain due, the sheriff must proceed to collect such balance as upon an execution in other cases. Whenever the judgment shall have been paid, the sheriff, upon reasonable demand, must deliver over to the defend- ant the attached property remaining in his hands, and any proceeds of the property attached unapplied on the judg- ment. En. March 11, 1872. Prac. Act, sec. 133. En. April 29, 185L Cal. Rep. Cit. 45. 616. Proceedings supplementary to execution: Post, sees. 714 et seq. § 552. When suits may be commenced on the undertak- ing. If the execution be returned unsatisfied in whole or in part, the plaintiff may prosecute any undertaking given pursuant to section five hundred and forty, or section five hundred and fifty-five, or he may proceed as in other cases upon the return of an execution. En. March 11, 1872. Cal. Rep. Cit 57, 159; 71, 306; 79, 559; 95, 448; 95, 449; 123, 245. Prac. Act, sec. 134. En. April 29, 1851. § 553. If defendant recover judgment, what the sheriff Is to deliver. If the defendant recover judgment against the plaintiff, any undertaking received in the action, all the proceeds of sales and money collected by the sheriff, and all the property attached remaining in the sheriff's hands, must be delivered to the defendant or his agent The order of attachment shall be discharged, and the property re- leased therefrom. En. March 11, 1872. Cal. Rep. at. 76, 564; 76, 565; 123, 94; 123, 96; 133, 112; 133, 113. Prac. Act sec. 135. En. April 29, 1851. § 554. Proceedings to release attachment before whom taken. Whenever the defendant has appeared in the ac- tion he may, upon reasonable notice to the plaintiff, apply to the court in which the action is pending, or to the judge thereof, for an order to discharge the attachment, wholly or in part; and upon the execution of the undertaking men- tioned in the next section, an order may be made, releasing § 535 ATTACH MK NT. «W from the operation of the attnchmont any or all of tho prop- erty attached; and all of the property so released, and all of the proceeds of the sales thereof, must be delivered to tlio defendant, upon the justification of the sureties on the undertaking, if required by the plaintiff. En. March 11, 1872. Am'd. 1S80, 4. Cal. Rep. CIt. 63. 540; 64. 407; 72, Bfrl; 79. (558; 86. 372; 95, 448; 119. 49; 123, 94; 123. 242; 123. 244; 123. 245; 134. 5U; 134, 512; 139. 411; 139. 413. rrac. Act, 8CC. 136. En. April 29. 1851. Am'd. 1854, 61; 1863. 305. Cal. Rep. Clt. 1. 337; 28. 651; 31. 270. Appearance: Post, sec. 1014. 5 555. Attachment, In what cases It may be released and upon what terms. Before making such order, tho court or judge must require an undertaking on behalf of the defendant, by at least two sureties, residents and free- holders, or householders, in the state, to the effect that in case the plaintiff recover judgment In the action, defendant •will, on demand, redeliver the attached property so re- leased to the proper ofTlcer, to be applied to the payment of the judgment, or in default thereof, that the defendant and sureties will, on demand, pay to the plaintiff the full value of the property released. The court or judge making such order may fix the sum for which the undertaking must be executed, and if necessary in fixing such sum to know the value of the property released, the same may be appraised by one or more disinterested persons, to be appointed for that purpose. The sureties may be required to justify be- fore the court or judge, and the property attached cannot be released from the attachment without their justifica- tion, if the same be required. En. March 11, 1872. Am'd. 1873-4. 308. Cal. Rep. Cit. 54. 504; 57, 159; 58, 344; 63, 540; 72, 554; 78,448; 79. 558; 79, 560; 86, 372; 95, 448; 95, 449; 119, 49; 119. 51; 123, 94; 123, 242; 123, 245; 134, 511; 139, 413. Prac. Act. sec. 137. En. April 29, 1851. Am'd. 1854, 61; 1863, 305; 1864, 44. Cal. Rep. Cit. 1, 334; 1, 335; 11, 276; 22, 634. Undertaking to prevent attachment; Sec. 540. P3 ATTACHMENT. 8§ 556-558 Court commissioners, power to take bonds, examine sure- ties, etc.: Sec. 2.59, subd. 3. Sureties, qualifications of: Ante, see. 494; post, sec. 1057. Justification: Ante, sees. 259, subd. 3, 494; post, sec. 941. § 556. V/hen a motion to discharge attachment may be made and upon what grounds. The defendant may also at any time, either before or after the release of the attached property, or before any attachment shall have been ac- tually levied, apply on motion, upon reasonable notice to the plaintiff, to the court in which the action is brought, or to a judge thereof, that the writ of attachment be dis- charged on the ground that the same was improperly or Irregularly issued. En. March 11, 1872. Am'd. 1873-4, 309; 1880, 4. -Cal. Rep. Cit. 63, 183; 72, 554; 76. 290; 97, 99; 122, 96; 137, 418; 137, 419; 139, G39; 145, 783. Prac. Act, sec. 138. En. April 29, 1851. Am'd. 1854, 61; 1858, 153; 1860, 301. Cal. Rep. Clt. 38, 210. § 557. When motion made on affidavit, It may be op- posed by affidavit. If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plain- tiff may oppose the same by affidavits or other evidence, in addition to those on which the attachment was made. En. March 11, 1872. Cal. Rep. Cit. 84, 176; 89, 480; 137, 418. Prac. Act, sec. 139. En. April 29, 1851. Am'd. 1858, 153; 1860, 301. On affidavits, compare application to dissolve injunction: Ante, sec. 532. § 558. When writ must be discharged. If, upon such application, it satisfactorily appears that the writ of attach- ment was improperly or irregularly issued, it must be dis- charged. En. March 11, 1872. Cal. Rep. Cit. 72, 554; 97, 99; 122, 209; 137, 418; 137, 419. Prac. Act, sec. 140. En. April 29, 1851. Am'd. 1858, 154; 1860, 301. Cal. Rep. Cit. 74, 567. {S I'oO. BM ATTACHMENT. »M § 559. When writ to be returned. The sheriff must return the writ of attachment with the Rumraons, if issued at the same time; otherwise, within twenty days after its receipt, with a certificate of his proceedings Indorsed thereon or attached thereto; and whenever an order has been made discharging or releasing an attachment upon real property, a certified copy of such order may be filed in the offices of the county recorders in which the notices of attachment have been filed, and be indexed in like manner. En. March 11, 1872. Am'd. 1875-6, 91. Cal. Rep. Cit. 80, 466; 139. 413; 146, 779. Prac. Act, sec. 141. En. April 29, 1851. Cal. Rep. Clt. 43, 580. Notices of attachment filed: Ante, sec. 542, subds. 1, 2. Return of inventory with writ: See supra, sec. 546. CHAPTER V. RECEIVERS. § 564. Appointment of receiver. § 566. Appointment of receivers upon dissolution of corporatloni. § 606. Who shall not be appointed. § 567. Oath and undertaking. § 568. Powers of receivers. 5 569. Investment of funds. § 564. Appointment of receiver. A receiver may be appointed by the court in which an action is pending, or by the judge thereof: 1. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any prop- erty or fund to his claim, or between partners or others jointly owning or interested In any property or fund, on the application of the plaintiff, or of any party whose right to or Interest in the property or fund, or the proceeds thereof, is probable, and where It Is shown that the prop- erty or fund is In danger of being lost, removed, or mate- rially injured; 2. In an action by a mortgagee for the foreclosure of his mortg-age and sale of the mortgaged property, where it appears that the mortgaged property Is in danger of being lost, removed, or materially injured, or that the condition of the mortgage has not been performed, and that the prop- 203 RECEIVERS. 5 565 erty is probably insufficient to discharge the mortgage debt; 3. After judgment, to carry the judgment into effect; 4. After judgment, to dispose of the property according to the judgruent, or to preserve it during the pendency of an appeal, or in proceedings in aid of execution, when an execution has been returned unsatisfied, or when the judg- ment debtor refuses to apply his property in satisfaction of the judgment; 5. In the cases when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights; 6. In all other cases where receivers have heretofore been appointed by the usages of courts of equity. En. March 11, 1872. Cal. Rep. Cit. 53, 551; 53. 553; 53, 554; 54, 287; 54. 288; 55. 456; 56, 29; 56. 627; 60. 227; 71. 272; 72, 573; 75, 322; 84, 356; 84. 357; 84, 360; 84, 374; 95, 278; 108, 435; 110. 141; 120, 618; 121, 545; 123, 237; 123. 238; 129. 565; 130, 599; 138, 238; 144. 662. Subd. 2—57, 624; 65. 433; 98. 495; 99. 410; 115. 94; 120. 615; 121, 544; 123, 235; 123, 236; 129, 565; 144, 660. Subd. 3—110, 144; 121. 41; 130. 599. Subd. 4—57, 522; 72, 575; 78, 358. Subd. 5—53, 550; 84, 355; 85, 36; 110. 140; 129, 632. Subd. 6—66, 615; 85, 36; 95, 276; 115, 274. Prac. Act, sec. 143. En. April 29, 1851. Am'd. 1854, 61. Cal. Rep. Cit. 20, 55; 22, 193; 25, 16; 54, 287; 54, 288; 54, 289. § 565. Appointment of receivers upon dissolution of corporations. Upon the dissolution of any corporation, the superior court of the county in which the corporation carries on its business, or has its principal place of busi- ness, on application of any creditor of the corporation, or of any stockholder or member thereof, may appoint one or more persons to be receivers or trustees of the corporation, to take charge of the estate and effects thereof, and to collect the debts and property due and belonging to the corporation, and to pay the outstanding debts thereof, and to divide the moneys and other property that shall remain over, among the stockholders or members. En. March 11, 1872. Am'd. 1880, 4. Cal. Rep. Cit. 84. 366; 84, 369; 84, 370; 84, 380; 100, 119; 101, 148; 108, 435; 108, 437; 129, 631. SS 566, 567 nF.rnivEns. zo« Dissolution, involuntary: Civ. Code, sees. 399, 400, and this code, post, sees. 802 et seq.; voluntary: Post, sees. 1227 et seq. § 566. Who shall not be appointed. No party, or attor- ney, or person interested in an action, or related to any judRe of the court by consanguinity or afllnity within the third degree, can be appointed receiver therein without the written consent of the parties, filed with the clerk. If a receiver be appointed upon an ex parte application, the court, before making the order, may require from the ap- plicant an undertaking, with sufficient sureties, in an amount to be fixed by the court, to the effect that the ap- plicant will pay to the defendant all damages he may sus- tain by reason of the appointment of such receiver and the entry by him upon his duties, in case the applicant shall have procured such appointment wrongfully, maliciously, or without sufficient cause; and the court may. In its dis- cretion, at any time after said appointment, require an ad- ditional undertaking. En. March 11, 1872. Am'd. 1873-4, 309; 1897, CO. Cal. Rep. Cit 56, 627; CO, 227; 64, 626; 84, 366. § 567. Oath and undertaking. Before entering upon his duties, the receiver must be sworn to perform them faith- fully, and with one or more sureties, approved by the court or judge, execute an undertaking to such person, and in such sum as the court or judge may direct, to the effect that he will faithfully discharge the duties of receiver in the action, and obey the orders of the court therein. En. March 11, 1872. Undertaking, generally. — By Political Code, sec. 981, "the provisions of this article apply to the bonds of receivers, executors, administrators, and guardians." The article re- ferred tc is part 3, c. 7, art. 9, and comprises Political Code, sees. 947 to 986 inclusive. Many of those provisions seem quite inapplicable to the undertaking of receivers, etc., and want of space prevents the insertion of the whole in this place. By Political Code, sec. 982, bonds or under- takings given by trustees, receivers, assignees, or officers of a court, are to be in the name of the state of California, and may by order of the court be prosecuted for the benefit of any person interested. Undertakings, generally: Post, sec. 941. 207 DEPOSIT IN COURT. §§ 568-573 § 568. Powers of receivers. The receiver has, under the control of the court, power to bring and defend actions his own name, as receiver; to talce and keep possession of the property, to receive rents, collect debts, to compound for and compromise the same, to make transfers, and gen- erally to do such acts respecting the property as the court may authorize. En. March 11, 1872. Cal. Rep. Cit. 84, 11; 91, 455; 113, 515; 116, 366; 116 367- 120, 475. § 569. Investment of funds. Funds in the hands of a receiver may ba invested upon interest, by order of the. court; but no such order can be made, except upon the con- sent of all the parties to the action. En. March 11, 1872. Cal. Rep. Cit. 56. 627. CHAPTER VT. DEPOSIT IN COURT. § 572. Deposit In court. § 573. Money paid to clerk must be deposited with county treasurer. § 574. Manner of enforcing the order. § 572. Deposit in court. When it is admitted by the pleading, or shown upon the examination of a party, that he has in his possession, or under his control, any money or other thing capable of delivery, which, being the sub- ject of litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same, upon motion, to be deposited in court or delivered to such party, upon such conditions as may be just, subject to the further direction of the court. En. March 11, 1872. Cal. Rep. Cit. 51, 446; 71, 271; 71, 272; 71, 273; 73, 269; 146, 386. Prac. Act, sec. 142. En. April 29, 1851. Deposit with clerk: See, further, post, sec. 2104. § 573. Money paid to clerk must be deposited with county treasurer. If the money is deposited in court, it must be paid to the clerk, who must deposit it with the I B74 DKPOSIT IN COURT. SM county treasurer, by him to be held subject to tho nrdrr of the court. For the safokcoping of the money drpusited ■with him the treasurer is liable on his official bond. En. March 11, 1S72. Cal. Rep. Clt. 51, 446;' 73. 2C9. Deposit with clerk: Post, sec. 2104. § 574. Manner of enforcing the order. TVTienever in the exercise cf its authority, a court has ordered the deposit or delivery of money or otbi r thing, and the order is dis- obeyed, the court, beside punishing the disobedience, may make an order requiring the sheriff to take tlie money or thing and deposit or deliver it in conformity with the direc- tion of the court. En. March 11. 1872. Cal. Rep. Cit. 51, 446; 57, 522; 99. 275. Punishing the disobedience, contempt: Sec. 1209. Sheriff's duties, as to official moneys: Pol. Code, sec. 4181. 20i JUDGMENT IN GENERAU 3 ^^ TITLE VIII. OF THE TRIAL AND JUDGMENT IN CIVIL ACTIONS. Chapter I. Judgment in General, §§ 577-582. II. Judgment Upon Failure to Answer, § 585. III. Issues— The Modes of Trial and Postponements, §§ 588-596. IV. Trial ty Jury, §§ 600-628. V. Trial by the Court, §§ 631-636. VI. Of References and Trials by Referees, §§ 638- 645. VII. Previsions Relating to Trials in General, §§ 646- 6631/^. . T ^ VIII. The Manner of Jivinjr and Entering Judgment, §§ 664-6801^. CHAPTERS. I. JTTDGMENT IN GEit, sec. 581; on trial by court: Post, sec. 633; on trial by jury. Post. sec. 664. Order defined: Post. sec. 1003. Final judgment: See, also, post, sees. 064, 9o3. Code Civil Proc— 14. 11 CTS-SBO JUDGMENT IN GENEHAU » 5 578. Judgment may be for or against one of the parties. Judgment may be given for or against one or more of several plaintiffs, an^l for or against one or more of several defendants, and It may. when the jiistice of the case requires it, determine the ultimate rights of the parties on each side, as between themselvs. En. March 11, 1872. Cal. Rep. CIt. 58, C07; 71. 447; 71. 451; 78. 2r,r.; 82, 583; 110, 492; 136, 71; 13G. 302; 14fi. 575; 147, 437. Prac. Act, sec. 145. En. April 29, 1851. Cal. Rep. Cit. 18, 400; 82, 583. Striking oat party: Ante, sec. 473. Fresh parties, bringin-g in: Ante. sec. 3S9. Service on one defendant out of several, effect of: ' Ante, Bee. 414. Joint debtors, proceedings against: Post, sees. 989 et seq. Joining persons severally liable on same Instrument: Ante. sec. 383. Association, action against persons under name of: Ante, sec. 388. § 579. Judgment may be against one party and action proceed as to others. In an action ac;;iinst several dofrnd- ants, the court may. In its discretion, render judgment against one or more of them, leaving the action to pro- ceed against the others, whenever a several judgment i3 proper. En. March 11, 1872. Cal. Rep. Cit 103, 36; 136, 302. Pra«. Act, sec. 146. En. April 29, 1851. OaJ. Rep. Cit 6, 183; 24, 382. Striking out party: Ante, sec. 473. Fresh parties, bringing in: Ante, sec. 389. Service on one defendant out of several, effect of: Ante, sec. 414. Joint debtors, proceedin'gs against: Post, sees. 989 et seq. Joining persons severally liable on sajne instrument: Ante, sec. 383. § 580. The relief to be awarded to the plaintiff. The relief granted to the plaintiiT, if there be no answer, cannot exceed that which he shall have demanded in his com- plaint; but in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue. En. March 11, 1872. 211 JUCOMENT IN GENERAU § 581 Cal Ren Cit. 53, 288; 57, 326; 63, 106; 65, 55; 65, 353; 'to 333- 72 249; 75, 522; 78, 40; 99, 68; 99, 244; 99' 418-'lOO' 625; 105. 45n; 107, 255; 110, 492; 116, 324; 116 377- 117 220; 120, 43; 122, 398; 125. 312; 125, 313; 125' 557- 125' 558- 120, 341; 126. 342; 126, 424; 128, 319; 129' 179- 130* 406; 131, 48; 132, 697; 132, 698; 133, 230; 133', 494'; 136, 29; 141, 364; 142, 63; 144, 67; 144, 775; 146] ll;'l46, 416. Prac. A^t, sec. 147. En. April 29, 1851. Cal Rep Cit. 11. 19; 20, 92; 28, 294; 32, 650; 34, 81; 37, 528; 41, 256; 117, 220. § 581. Action may be dismissed or nonsuit entered. An action may be dismissed, or a judgment of -nonsuit entered. In the following cases: 1 By the plaintiff himi5elf, by written request to the clerk filed among the papers in the case, at any tinw before trial, upon payment of costs; provided, a counter- claim has not been made, or affirmative relief sought by the cross^omplaint or answer of the defendant. If a pro- visional remedy has been allowed, the undertaking must thereupon be delievered by the cerk to the defendant, who may have his action thereon; , , ^v *u 2 By either party upon the written consent of the otner; 3 By the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dis- ™4^ By the court, when, upon the trial and before the final submission of the case, the plaintiff abandons it; 5 By the court, upon motion of the defendant, when upon the trial the plainUff fails to prove a siifficient case °6 By^ihe court, when, after verdict or final submission, the party entitled to judgment neglects to demand and have the same entered for more than nx months. The dismissals mentioned in subdivisions one and two hereof are made by entry in the clerk's register. The dismissals mentioned in subdivisions three, lo^r five, and six of this section, shall be made by orders of the couri: entered upon the minutes thereof and sjall be effective for all purposes when so entered, but tjie c erk of the court shall note such orders m his register of actions '''7'^VnTno action heretofore or hereafter commenced ^all be further prosecuted, and no further Proceedmgs Bhall be had therein, and all actions J'^^etofore or hereafter commenced shaU be dismissed by the court in which the { 582 JUDGMENT IN GEXEnAL. JU same shall have been commenced, on its own motion, or on motion of any part}- Interested therein, whether named in the complaint as a party or not. unless summons shall havo been issued within one year, and all such actions shall be in like manner dismissed, unless the summons shall be served and return thenon m:ide within throe years after the commencement of said a<^tion. But all siioh actions may be proscx^uted, if appearance has been made by the def'endant or defendants, within said three years in the sarao manner as jf summons ha4 been issued and served. En. March 11, 1872. Am'd. 1877-8, 100; 1885, 76; 1889, 398; 1895. 31; 1897, 98. Cal. Rep. Cit. 58, 190; 77, 84; 82, 415; 93. 509; 93, 511 99, 339; 102. 614; 113. 304; 113. 306; 118, 224; 125, 300 125. 392; 13G, 300; 120, 301; 127. 523; 127, 524; 129, 250 129. 672; 132, 83; 132, 436; 135, 672; 136, 316; 136, 554 136. 655; 137. 272; 137. 657; 140, 34; 140, 174; 141. 9 141, 55; 141. 655; 141. 667; 144, 655; 146, 750; 147, 502 147, 605. Subd. 1—53, 32; 65, 97; 65, 266; 66, 350 67. 590; 76, 373; 82. 415; 90. 216; 90, 391; 106, 62 115. 155; 116. 667; 118. 221 ; 125, 264; 132.434; 132 435; 134, 62; 135. 668; 136, 316; 136. 553; 139, 94: 140 377; 141, 284; 145, 570. Subd. 2—104, 667. Subd. 3— 77, 327; 122. 384; 125. 214; 126. 298; 129. 672. Subd. 4—56. 588; 91, 356; 123. 386; 126. 299: 129, 672. Subd. 5—53, 310; 53, 388; 113, 692; 129, 672. Subd. 6—75, 5bo; 77, 459; 97, 425; 110, 227; 126. 247; 126, 324; 126, 609; 129. 672. Subd. 7—99, 385; 100. 512; 113, 303; 119, 177; 125, 299; 128, 256; 132, 82; 132. 455; 132, 507; 132, 508; 137, 271; 141, 7; 141, 578; 141, 655; 144, 427. Prac. Act, sec. 148. En. April 29, 1851. Cal. Rep. Cit. 13. 637; 18, 77; 20. 93; 22, 102; 22, 465; 25, 276; 25, 277; 28, 169; 35, 302; 47, 546; 47, 547; 126, 299; 135, 668. Dismissal for want of prosecution: See post, sec. 583. Variance, fatal or otherwise: Ante, sees. 469-471, Trial — Either party may bring on: Post, sec. 594. § 582. All other judgments are on the merits. In every ease, other than those mentioned in the last section, judg- ment must be rendered on the merits. En. March 11, 1872. Cal. Rep. Cit. 58, 190; 9?, 509; 94, 469; 118, 224; 125, 214; 126, 299; 126, 300; 129, 250. Prac. Act, sec. 149. En. April 29, 1851. Cal. Rep. Cit 25, 277; 47, 548; 126, 299. 21S JUDGMENT XJPON FAILURE TO ANSWER. §§ 5S3, 585 § 583. Dismissal of actions. The court may in its dis- cretion dismiss any action for want of prosecution on mo- tion of the defendant and after due notice to the plaintilt, whenever plaintiff has failed for two years after answer filed to bring such action to trial. Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court on its own motion, unless such action is brought to trial within five years after the defendant has filed his answer, except where the parties have stipulated in writing that the time may be ex- tended. Ea. Stats. 1905. 244. CHAPTER IL JUDGMENT UPON FAILURE TO ANSWER. § B85. In what caaca Judgment may be had upon the fallnre of the defendant to answer. § 585. In what cases Judgment may be had upon the failure of the defendant to answer. Judgment may be had, if the defendant fail to answer the complaint, as fol- lows: 1. In an action arising upon contract for the recovery of money or damages only, if no answer has been filed with the clerk of the court within the time specified in the sum- mons; or such further time as may have been granted, the clerk, upon application of the plaintilT, must enter the de- fault of the defendant, and immediately thereafter enter judgment for the amount demanded in the prayer of the complaint, Including the costs, against the defendant, or aguinst one or more of several defendants in the cases pro- vided for in section four hundred and fourteen; 2. In other actions, if no answer has been filed with the clerk of the court within the time specified in the sum- mons, or such further time as may have been granted, the clerk must enter the default of the defendant; and there- after the plaintiff may apply to the court for the relief de- manded in the complaint. If the taking of an account, or the proof of any fact, is necessary, to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof; or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of damages, in whole S 686 JUDGMENT UPON FAILURE TO ANSWER. tli or In part, the court may order the damages to be assessod by a jury; or if, to determine the amount of damages, the examination of a long account be Involved, by a reference as above provided; S. In actions where the service of the summons was by publication, the plaintilT, upon the expiration of the time for answerirg, may, upon proof of the pub- lication, and that no answer has been filed, apply for judgment; and the court must thereupon require proof to be made of the demand mentioned in the complaint; and If the defendant be not a resident of the state, must re- quire the plaintiff, or his agent, to be examii.^d on oath, respecting any payments that have been made to the plain- tiff, or to any one for his use, on account of such demand, and may render judgment for the amount which he is en- titled to recover. En. March 11, 1872. Am'd. 1905, 42. Cal. Rep. Clt 53, 254; 64, 204; 68, 425j 68, 427; 68, 428; 90, 507; 103, 207; 136, 363. Subd. 1—108, 30; 108, 31; 111, 551; 136, 557; 136, 574; 144, 4. &ubd. 2—136, 363; 136, 574. Subd. 3—137, 427. Prac. Act, sec. 150. En. April 29, 1851. Cal. Rep. Cit. 4, 256; 6, 156; 7, 450; 17, 566; 28. 214; 32. 635; 32, 636; 34, 27; 68, 427. As to validity of service of summons: Sec. 411. Names, fictitious, amending, etc.: Sec. 474. Appeal: Sec. 939. Award, judgment on: Sec. 1286. Confession, judgment by: Post, sees. 1132 et seq. Dollars and cents, without fractions, money judgments must be in: Pol. Code, sec. 3274. Gold coin, judgment in: Post, sec. 667. J-udgment, generally, docketing, satisfaction, etc.: Post, Bees. 664-675. Judgment, void, etc., setting aside: Ante, sec. 473. Objections, waiver of, by not demurring or answering: Ante, sec 434. Pending, action when: Post, sec. 1049. as ISSUES. 8§ 588-591 CHAPTER III. ISSITES— TITE MODE OF TRIAL AND POSTPONEMENTS. § 5SS. Issue defined, and the different kinds. § 5S9. Issue Of law, how raised, § 590. Issue of fact, how raised. § 591. Isisue of law, how tried. S 592. Issue of fact, how tried. "When Issues both of law and fact, the former to be first disposed of. § 593. Clerk must enter causes on the calendar, to remain until dis- posed of. § 594. Parties may bring Issue to trial. § 596. Motion to postpone a trial for absence of testimony, requisites of. { 59G. In cases of adjournment a party may have the testimony of any witness taken. § 588. issue defined, and the different kinds. Issues arise upon the pleadings when a fact or conclusion of law is maintained by the one party, and is controverted by the other. They are of two kinds: 1. Of law; and, 2. Or fact. En. March 11, 1872. Cal. Rep. Cit. 88, 227; 88, 315; 93, 619; 132, 11; 135, 669; Subd. 2—120. 37. Prac. Act, sec. 151. En. April 29, 1851. Issues of law and fact: See post, sees. 589, 590. § 589. Issue of law, how raised. An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof. En March 11, 1872. Cal. Rep. Cit. 88, 227. Prac. Act, sec. 152. En. April 29, 1851. Am'd. 1854, 62. Cal. Rep. Cit. 1, 334; 1, 335. 5 590. Issue of fact, how raised. An issue of fact arises: 1. Upon a material allegation in the complaint, contro- verted by the answer; and, 2. Upon new matters in the answer, except an issue of law is joined thereon. En. March 11, 1872. Cal. Rep. Cit. 88, 227; 99, 270; 108, 455; 124, 215; 125, 16; 125, 204; 132, 11. Subd. 1, 120, 37. Prac. Act, sec. 153. En. April 29, 1851. Am'd. 1854, 62. Cal. Rep. Cit 41, 404. § 591. Issue of law, how tried. An issue of law must be tried by the court, unless it is referred upon consent. En. March 11, 1872. Cal. Rep. Cit. 135, 669. §S r.9;-594 IS.SUE3. SI Prac. Act, sec. 154. En. April 29, 1851, Trial by court, generally: Post, sees. 631 et soq. § 592. Issue of fact, how tried. When issues both of law and fact, the former to be first disposed of. In ac- tions for the recovery of specific real or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for Injuries, an issue of fact mu.st be tried by a jury, unless a jury trial is waived, or a reference is ordered, as pro- vided In this code. Where in these cases there are issues both of law and fact, the issue of law must be first dis- posed of. In other cases, issues of fact must be tried by the court, subject to its power to order any such issue to be tried by a jury, or to be referred to a referee, as pro- vided in this code. En. March 11, 1872. Am'd. 1873-4, 309. Cal. Rep. Cit. 50. 506; 64, 56; 64, 473; C8, 264; 88, 183; 89, 598; 104, 2S8; 104, 372; 109, 444; 127, 201; 128, 523; 130. 521; 146, 420. Prac. Act, sec. 155. En. April 29, 1851. Generally, as to jur>' trial: Post, sees. 600-628. Waiver of jury trial: Post, sec. 631. Reference: Post, sees. 038-645. Ck)urt, trial by: Post, sees. 631-636. § 593. Clerk must enter causes on the calendar, to re- main until disposed of. The elerk must enter causes upon the calendar of the court according to the date of issue. Causes once placed on the calendar must remain upon the calendar until finally disposed of; provided, that causes may be dropped from the cajendar by consent of parties, and may be again restored upon notice. En. March 11, 1872. Am'd. 1880, 5. Prac. Act, sec. 156. En. April 29, 1851, Cal. Rep. Clt. 48, 425. Mandamus to compel clerk to perform duty: Post, sec 1085. Issue, generally: Ante, sec. 588. Abolition of terms: See Const. Cal., aii;. 6, sec. 5, § 584. Parties may bring issue to trial. Either party may bring an issue to trial or to a hearing, and in tlie absence of the adverse party, unless the court, for good cause, otherwise direct, may proceed with his case, and take a dismissal of the action, or a verdict or judgment, as the case may require; provided, however, if the issue to be tried is an issue of fact, proof must first be made 217 ISSUES. §§ 595, 696 to the satisfaction of the court that the adverse party has had five days' notice of such trial. En. March 11, 1872. Am'd. 1899, 5. Cal. Rep. Cit. 83, 230; 101, 178; 125, 214; 129, 685; 133, 419; 146, 214. Prac. Act, sec. 157. En. April 29, 1851. Cal. Rep. Cit. 50, 552. Dismissal: Ante, sec. 581. Surprise, setting aside judgment for: Ante, sec. 473. Surprise, new trial: Post, sec. 657. § 595. Motion to postpone a trial for absence of testi- mony, requisites of. A motion to postpone a trial on the ground of the absence of evidence can only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it. A trial shall be postponed when it appears to the court that the attorney of record, party, or principal witness is actually engaged In attendance upon a session of the legislature of this state as a member thereof. The court may require the moving party, where application is made on account of the absence of a material witness, to state upon affidavit the evidence which he expects to obtain; and if the adverse party thereupon admits that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed. En. March 11, 1872. Am'd. 1880, 1. Cal. Rep. Cit. 55, 51; 76, 342; 85, 307; 101, 176; 101, 178; 113, 287; 145, 151. Prac. Act, sec. 158. En. April 29, 1851. Costs on continuance: Post, sec. 1029. § 596. In cases of adjournment a party may have the testimony of any witness taken. The party obtaining a postponement of a trial in any court of record must, if required by the adverse party, consent 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 court may indicate, which must accordingly be done; and the testimony so taken may be read on the trial, with the same effect, and subject to the same ob- jections, as if the witnesses were produced. En. March 11, 1872. Cal. Rep. Cit. 84, 225. Depositions, in the state: Post, sees. 2019-2021, 2031- 2038. 55 600. COl TUIAL 13 Y JUUY. XU CHAPTER IV. TRIAL UY JURY. Article I. Formation of Jury, §5 600-604. II. Conduct ot the Trial. 55 607-610. III. The Verdict, 5} u':'(-6;:ji. ARTICLE I. FORMATION OK TIIIC Jl'RT. 5 600. Jury, how drawn. § COl. Chiillongos. Each p.arty ciitllled to four peremptory challenge*. 5 602. Groumls of chall.nKC. § 603. Challenges, how tried. 5 604. Jury to be sworn. § 600. Jury, how drawn. "WTien the action Is called for trial by jury, the clerk must draw from the trial jury box of the court the ballot-s contaiiiinj; the names of the jurors, until the jury is completed or the ballots are ex- hausted. En. March 11, 1872. Prac. Act, sec. 159. En. April 29. 1S51. Cal. Rep. Cit. 37, 678; 37, 679; 37. 689; 37, 690; 45. 330. Jury, generally: Ante. sees. 190-254; trial jury: Ante, sees. 193, 194. Trial by jury, conduct of: Post, sees. 607 et seq.; waiver of: Sec. G31; verdict after: Post, sees. 624 et seq. Trial jury box: Ante, sec. 246. Jurors, who are competent: Ante, sees. 198, 199. Exceptions and excuses: Ante, sees. 200-202. § 601. Challenges. Each party entitled to four peremp- tory challenges. Either party may challenge the jurors, but where there are several parties on either side, they must join in a challenge before it can be made. The chal- lenges are to individual jurors, and are either peremptory or for cause. Each party is entitled to four peremptory challenges. If no peremptory challenges are taken until the panel is full, they must be taken by the parties alter- nately, commencing with the plaintiff. En. March 11, 1872. Am'd. 1873-4, 310. Cal. Rep. Cit. 78, 120; 78, 123; 110, 416; 138, 165. m TRIAL BY JURY. §S 602, 60J Prac. Act, sec. 161. En. April 29, 1851. Challenge for cause: Post, sec. 602. § 602. Grounds of challenge. Challenges for cause may be taken on one or more of the following grounds: 1. A want of any of the qualifications prescribed by this code to render a person competent as a juror. 2. Consanguinity or affinity within the fourth degree to any party. 3. Standing in the relation of guardian and ward, master and servant, 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 surety on any bond or obligation for either party. 4. Having served as a juror or been a witness on a previous trial between the same parties, for the same cause of action. 5. Interest on the part of the juror In the event of the action, or In the main question involved In the action, except his Interest as a member or citizen of a municipal corporation. 6. Having an unqualified opinion or belief as to the merits of the action, founded upon knowledge of Its mate- rial facts, or of some of them. 7. The existence of a state of mind in the juror evincing enmity against or bias to or against either party. En. March 11, 1872. Am'd. 1873-4, 310. Cal. Rep. Cit. 141, 742; 146, 422; 146, 425. Subd. 2—130, 107; 130, 108. Subd. 5—121, 107. Subd. 7—124, 314. Prac. Act, sec. 162. En. April 29, 1851. Am'd. 1860, 302. Cal. Rep. Cit. 12, 492. Subd. 1. Want of necessary qualifications — Competent jurors: Ante, sec. 198. Incompetent jurors: Ante, sec. 199. Exemptions and excuses: Ante, sees. 200, 201. Subd. 2. Consanguinity or aflinity, generally: Ante, sec. 170. Challenge in criminal causes: See Pen. Code, sees. 1055 et seq. § 603. Challenges, how tried. Challenges for cause must be tried by the court. The juror challenged and any other person may be examined as a witness on the trial of the challenge. En. March 11, 1872. Prac. Act, sec. 163. En. April 29, 1851. Cal. Rep. Cit. 29. 136. gS GO*, 007 THIAI. DY JTRY. SO § 604. Jury to be sworn. As soon as the jury Is com- pleted, an outh must be administered to the jurors, in substance, that they and each of them will well and truly try the matter In issue between , the plaintiff, and , defendant, and a tr\ie verdict render, according to the evidence. En. March 11. 1872. Prac. Act, sec. 160. En. April 29. 1851. Cal. Rep. Cit. 37, C89; 37, 690; 45, 330; 144, 756. Oath, administration of, generally: Post, sees. 2093-2097. ARTICLE II. CONDUCT OF THE TRIAU { (WT. Orilrr of prnrer<1lnK9 on trial. 8 608. Charffo to the Jur.v. Court must furnish. In writing, upon re- riucat, the points of law contained therein. J S09. .Spotlul InstructI ins. g CIO. View liy Jury of the premises. 5 CU. .\i1monUlon whon Jury permitted to separata. § G12. Jury may take with Ihim certain papers. S613. Dfllberatlon of Jury, how ccinilucted, 614. May come Into court for further Instructions. 5 616. Proceedings In case a Juror becomes sick. § 616. When prevented from giving verdict, the cause may he nsrafm tried. § 617. While Jury are absent, court may adjourn from tlma to tlm«. Sealed verdict. § 618. Verdict, how declared. Form of. Polling the Jury. § 619. Proceedings when verdict Is Informal. § 607. Order of proceedings on trial. When the Jury has been sworn, the trial must proceed In the following order, unless the judge, for special reasons, otherwise directs: 1. The plaintiff, after stating the issue and his case, must produce the evidence on his part; 2. The defendant may then open his defense, and offer his evidence in support thereof; 3. The parties may then respectively offer rebutting evidence only, unless the court, for good reason, In fur- therance of justice, permit them to offer evidence upon their original case; 4. When the evidence Is concluded, unless the case is submitted to the jury on either side, or on both sides. 2a TRIAL BY JURY. J 608 without ar^iment, the plaintiff must commence and may conclude the ar§umc-nt; 5. If several defendants, having separate defenses, ap- pear by different counsel, the court must determine their relative order in the evidence and argument. 6. '5iie court may then charge the Jury. En. March 11, 1872. Cal. Rep. Cit. 67, 445; 140, 420; 140, 428; 140, 429; UQ^ 480; 140, 438. Proceedings, etc., on trial — Amendments: Sec. 478. Either party may bring on trial: Ante, sec. 594. Nonsnita, etc.: Ante, sec. 581. As to the proof necessary to make out a case: Post, sees. 1867, 1869. Variance: Ante, sees. 469-471. View by Jury: Post, sec. 610. Evidence — Order of proof: Sec. 2042. Admissibility Is for court: Post, sec. 2102. Allegations, material only need be proved: Sec. 1867. Burden of proof: Post, sees. 1869, 1981. Relevancy of evidence: Post, sees. 1868-1870. Rele- vancy, collateral facts: Post, sees. 1868, 1870. Witnesses — Answer, witness must: Sec. 2065. Cross-ex- amination: Post, sec. 2048. Direct examination: Post, sec. 2045. Excluding witnesses from courtroom: Post, sec. 2043. Experts: Post, sec. 1870, subd. 9. Impeaching and evidence of good character: Post, sees. 2049-2053. Inter- preters: Post. sec. 1884. Leading questions: Post, sec. 2046. Mode of Interrogation: Post, sec. 2044. Oaths: Post, sees. 2093-2097. Protection of witnesses: Post, sec. 2066. Re- freshing memory: Pv-st, sec. 2047. Testimony, clerk to take down, if no shorthand reporter: Post, sec. 1051. Writing shown to witness, other side may see: Post, sec. 2054. Charge to Jury: Post, sees. 608, 609. 8 608. Charge to the Jury. Court must furnish, In writ- ing, upon request, the points of law contained therein. In charging the jury, the court may state to them all mat- ters of law which it thinks necessary for their information in giving their verdict; and if It state the testimony of the case, it must inform the Jury that they are the exclusive Judges of all questions of fact. The court must furnish to either party, at the time, upon request, a statement, in writing, of the points of law contained in the charge, or sign at the time a statement of such points prepared and II ;. . Ci: TKIAI. I;Y Jl'RT. 232 siihiiillted by the counsel of either party. En. March 11, 1872. Cal. Rep. Clt. 124. 523. Prac. Act, sec. 165. En. April 29. 1851. Matters of law, court stating In charge: Const. Cal.. art 6, sec. 19; poBt, sec. 2102, also sec. 20G1; sec. 657, subd. 7. § 609. Special instructions. Wlicre either party a.sk3 spi'cial instructions to be given to the jury, the court must either give such instruction, as requested, or refuse to do feo, or give the instruction with a incjAlification. in such manner that it may distinctly aF)pcar what instructions were given In whole or in part. En. March 11, 1872. ExcaptioDs: Post, sec. C46. § 610. View by jury of the premises. When, in the opinion of the court, it is proper for the Jury to have a view of the property which is the subject of litigation, or of the place in which any material" fact occurred, it may order them to be conducted, in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person, other than the person so appointed, shall speak to them on any subject connected with the trial. En. March 11, 1872. Cal. Rep. at 49, 609; 50, 557. § 611. Admonition when jury permitted to separate. If the jury are permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with or suffer themselves to be addressed by any other person on any subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is finally submitted to them. En. March 11, 1872. Cal. Rep. Cit 54, 547. § 612. Jury may take with them certain papers. Upon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the cause, except depositions or copies of such papers as ought not. 223 TRIAL BY JURT. §§ S13. 614 In the opinion of the court, to be taken from the person having them in possession; and they may also take with them notes of the testimony or other proceedings on the trial, taken by themselves, or any of them, but none taken by any other person. En.' March 11, 1872. Cal. Rep. Cit. 7C, 19G; 83. 648; 88, 648; 146, 481. Prac Act, sec. 1C7. En. April 29, 1851. Cal. Rep. Cit. 1, 177; 1, 179; 36, 179. § 613. Deliberation of Jury, how conducted. When the case is finaJly submitted to the jury, they may decide in court or retire for deliberation; if they retire, they must be kept together, in some convenient place, under charge of an officer, until at least three-fourths of them agree upon a verdict or are discharged by the court. Unless by order of the court, the officer having them under his charge must not suffer any communication to be made to them, or make any himself, except to a-sk them if they or three-fourths of them are agreed upon a verdict, and he must not, before their verdict is rendered, cammunicate to any person the state of their deliberations, or the ver- dict agreed upon. En. March 11, 1872. Am'd. 1880, 10. Prac. Act, sec. 166. En. April 29, 1851, Three-fourths, agreement of: See Const. Cal., art. 1, sec. 7. § 614. May come into court for further Instructions. After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testi- mony, or if they desire to be informed of any point of law arising in the cause, they may require the officer to con- duct them into court. Upon their being brought into court, the information required must be given in the pres- ence of, or after notice to, the parties or counsel. En. March 11, 1872. Prac. Act, sec. 168. Ea. April 29, 1851. Cal. Rep. Cit 28, 1C9. Holidays, Sundays, etc. — Instructions may be given to Juries deliberating on: Ante, sec 134, subd. L On non- judicial days: Idem. {g 615-«W TniAI. BY Jl'RT. 284 9 815. Proceedings in case a juror becomes sick. If, after the impanoling of tJie j'iry, and before verdict, a Juror booonios sick, so as to be uuable to perform his duty, the court may ord«'r him to be diacharRed. In that case the trial may proceed with the other jurors, or an- other juror may be sworn ami the trial be^in anew; or the jury may be discharged and a new jury then or after- ward impaneled. En. March 11, 1872. Prac. Act, sec. 1C4. En. April 29, 1851. Cal. Rep. Cit. 1, 337. § 616. When prevented from giving verdict, the cause may be again tried. In all casos where the jury are dis- charged, or prevented from giving a verdict, by reason of accident or other cause, during the progress of the trial, or after the cause is submitted to them, the action may b« tigaAn tried im;mediately, or at a future time, as the court may direct. En. March 11, 1872. CaJ. Rep. Cit 114, 478. Prac. Act, sec. 1C9. En. April 29, 1851. § 617. While jury are absent, court may adjourn from time to time. Sealed verdict. While the jury are absent the court may adjourn from time to time, in respect to other business; but it is nevertheless open for every pur- pose connected with the cause submittetl to the jury until a verdict is rendered or the jury discharged The court may direct the jury to bring in a sealed verdict, at the opening of the court, in case of an agreement during a recess or adjournment for the day. En. March 11, 1872. Am'ti. 1880, 10. Oal. Rep. Cit. 50, 649. Prac. Act, sec. 170. En. April 29, 1851. § 618. Verdict, how declared. Form of. Polling the jury. When the jury, or three-fourths of thom, have agreed upon a verdict, they must be conducted into court, their names called by the clerk, and the verdict rendered hy their foreman; the verdict must be in writing, signed by the foreman, and must be read by the clerk to the Jury, and the inquiry made w'hether it is their verdi't. '' ither party may require the jury to be polled, which is 225 TRIAL BY JURY. 5§ 619, 624 done by the court or clerk asking each juror if it is his verdict; if upon such inquiry or polling, more than one- fourth of the jurors disagree thereto, the jury must be sent out again, but if no such disagreement be expressed, the verdict is complete and the jury discharged from the case. En. March 11, 1872. Am'd. 1880, 10. CaL Rep. Cit. 80, 82; 134, 11. Prac. Act, sec. 171. En. April 29, 1851. Prac. Act, sec 173. En. April 29, 1851. Cal. Rep. Cit. 8, 618. Verdict received on nonjudicial day: Ante, sec. 134. § 619. Proceedings when verdict is informal. When the verdict is announced, if it is informal or insufficient in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out. En. March 11, 1872. CaL Rep. CIL 66, 217. Prac. Act, sec 172. En. April 29, 1851. ARTICLE IIL THE VERDICT. § 624. Genera! and special verdicts defined. S 625. When a general or special verdict may be rendered. § 626. Verdict In actions for recovery ol money or on establishing counterclaim. S 627. Verdict in actions for Uie recovery of specif; i>ersonal proj)- erty. { 628. Entry of verdict. S 624. General and special verdicts defined. The ver- dict of a jury is either general or special. A general ver- dict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or de- fendant: a special verdict is that by which the jury find the facts only, leaving the judgment to the court. The special verdict must present the conclusions of fact as es- tablished by evidence, and not the evidence to prove them; and those conclusions of fact must be so presented, as that nothing shall remain to the court but to draw from them conclusions of law. En. March 11. 1872. Code Civil Proe.— 14. }{ C2L-C::n TRIAL BY JURT. SI Cal. Rep. Cit. 74. 208; 91, 210; 134, IL Prac. Act, sec. 174. En. April 29, 185L Cal. Rep. Cit. 19. 105. General or special verdict, when may be rendered: Post, sec. C25. MiscoQduct of jury: Sec. 657, subd. 2. § 625. When a general or special verdict may be ren- dered. In an action for the recovery of money only, or spK'ific real property, the jury, unless instructed by the court to render a special verdict, may in their discretion render a Kcneral or special verdict. In all cases the court must, upon the request in writing of any of the parties, direct the Jury to find a special verdict in writing upon all or any of the i.ssues and in all cases must instruct them upon the request in writing of any of the parties. If they render a general verdict, to Gnd upon particular questions of fact, to be stated in writing, and must direct a written finding thereon. The special verdict or finding must be filed with the clerk and entered upon the minutes. Where a special finding of facts is Inconsistent with the general verdict, the former controls the latter and the court must give judgment accordingly. En. March 11, 1872. Am'd. 1906, 56. Cal. Rep. Cit 65, 51; 72, 381; 77, 590; 96, 648; 97, 418; 99, 124; 103, 471; 104, 641; 126, 365; 128. 208; 130, 652; 135, 612. Prac. Act, sec. 175. EJn. April 29, 1851. Am'd. 1854, 62. Cal. Rep. Cit. 4, 9; 19, 105; 28. 418; 28, 420. § 626. Verdict In actions for recovery of money or on establishing counterclaim. When a verdict is found for the plaintiff, in an action for the recovery of money, or for the defendant when a counterclaim for the recovery of money is established, exceeding the amount of the plain- tiff's claim as established, the jury must also find the amount of the recovery. En. March 11. 1872. Cal. Rep. Cit 54, 280; 61, 120; 77, 427; 85, 193, Prac. Act, sec 176. En. April 29, 1851. Cal. Rep. Cit. 19, 658; 36, 176; 41. 59. § 627. Verdict in actions for the recovery of specific personal property. In an action for the recovery of speci- ST TRIAL BT THE COtTRT. §§ G28, 631 fic personal property, if the property has uot been deliv- ered to the plaintiff, or the defendant, by his answer, claim a return thereof, the jury, if their verdict be in favor ol the plaintiff, or, if being in favor of the defendant, they also find that he is entitled to a return thereof, must find the value of the property, and, if so instructed, the value of specific portions thereof, and may, at the same time, as- sess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the taking or detention of such property. En. March 11, 1872. Am'd. 1873-4, 31L Cal. Rep. Cit. 54, 194; 56, 459; 56, 460; 65, 238; 87, 347; 89, 504; 90, 560; 101, 239; 108, 145; 126, 40. Prac. Act, sec. 177. En. April 29, 1851. Cal. Rep. Cit 7, 571; 21, 280; 24, 149; 24, 151; 38, 584; 110, 277. Jury must find, etc.: See post, sec. 667. § 628. Entry of verdict. Upon receiving a verdict, an entry must be made by the clerk in the minutes of the court, specifying the time of trial, the names of the jurors and witnesses, and setting out the verdict at length; and where special verdict is found, either the judgment ren- dered thereon, or if the case be resei*ved for argument or further consideration, the order thus reserving It. En. March il, 1872. Cal. Rep. Cit 85, 579; 98, 363; 99, 515. Prac. Act, sec. 178. En. April 29, 1851. Cal. Rep. Cit 28, 420. CHAPTER V. TRIAL BY THE CX>URT. 8 sn. "W^p-n and Tiow trial by Jury may be waived. 5 632. TJi»in trial by court, decision to be in wilting and fflcsj within twenty days. E 633. Facts found and conclusions of law must be separately stated. Judgment on. § 634. Findings may be waived, how. I C35. Finding, how prepared. (Repealed.) § 636. Proceedings after determination of issue of law. § 631. When and how trial by jury may be waived. Trial by jury may be waived by the several parties to an issue of fact in actions arising on contract or for the re- J5 cr-634 TKIAL BY THE COURT. Hi covery of spoclflc real or personal property, with or with- out damages, and with the assent of the court In other ac- tions, in rcanner following: 1. By failing to appear at the trial. 2. By written consent, In person or by attorney, flled with the clerk. 3. By oral consent, In open court, entered In the min- utes. En. March 11. 1872. Amd. 1873-4, 311. Cal. Rep. Cit. 60, 366; 70, 448; 83. 231; 88, 183; 101. 641; 104. 467; lis. 248; 119, 248; 130, 642. Prac. Act, sec. 179. En. April 29, 1851. Cal. Rep. Cit 4, 113; 16, 433; 18, 411; 18. 443. Waiver of jury trial: See Ck>n8t. Cal., art. 1, soc. 7. § 632. Upon trial by court, decision to be In writing and filed within thirty days. Upon the trial of a question of fact by the court, its dt'cision must be given In vmting and filed with the clerk within thirty days after the cause Is submitted for decision. En. March 11, 1872. Am'd. 1873- 4, 312. Cal. Rep. Cit 63, 37; 63, 55; 64, 56; 64, 92; 65, 117; 65. 259; 65, 530; 66, 412; 68. 603; 69, 218; 70, 551; 81. 341; 84, 532; 87, 571; 89. 487; 90. 327; 95, 348; 98. 206; 99. 347; 108, 481; 110, 75; 116, 599; 119, 383; 125, 204; 139, 259; 140, 675. § 633. Facts found and conclusions of law must be separately stated. Judgment on. In giving the decision, the facts found and the conclusions of law must be sepa^ rately stated. Judgment upon the decision must be en- tered accordingly. En. March 11, 1872. Cal. Rep. Cit 49, 555; 61, 334; 63, 37; 63. 55; 64. 56 65. 117; 05. 530; 66, 318; 66, 406; 66. 412; 68. 159 68. 454; 69, 218; 70, 551; 81, 341; 84, 532; 89. 487 90, 327; 91, 598; 95, 348; 98. 206; 98, 362; 99, 347 102. 623; 106, 539; 107, 426; 108, 455; 108. 481; 108, 482 110, 75; 110, 76; 116, 599; 119, 383; 125, 204; 138, 330 140, 481; 140, 675. Prac. Act, sec 180. En. April 29, 1851. Am'd. 1865-6, B44. Cal. Rep. Cit 2, 305; 7, 261; 8, 619; 18, 448; 28, 70; 28 305; 31, 98; 33, 255; 33, 330; 34, 134; 34, 226; 35* 87; 38, 530; 39, 337; 46, 372; 89, 488; 105, 693. § 634. Findings may be v/aived, how. Findings of fact may be waived by the several parties to an issue of fact: iSS TRIALS BY REFEREES. §§ eSO-bSS 1. By failing to appear at the trial; 2. By consent in writing, filed with the clerk; 3. By oral consent in open court, entered in the minutes. En. March 11, 1872. CaJ. Rep. Cit. 51, 2G3; G3. 37; 67, 54; 68, 240; 83, 233; 85, 153; 91, 587; 91, 598; 94. 56; 90, 41; 99, 515; 104, 247; 110, 32; 146, 213. § 635. Findings, how prepared. (Repealed.) En- March 11, 1872. Am'd. 1873-4, 312. Rep. 1875-6, 91. Cal. Rep. Cit. 57, 537. § 636. Proceedings after determination of Issue of law. On a judgment for the plaintiff upon an Issue of law, he may proceed in the manner prescribed by the first two subdivisions of section five hundred and eighty-five, upon the failure of the defendant to answer. If judgment be for the defendant upon an issue of law, and the talking of an account or the proof of any fact be necessary to enable the court to complete the judgment, a reference may be ordered as irr that section provided. En. March 11, 1872. Cal. Rep. Cit. 103, 207. Prac. Act, sec. 181. En. April 29, 1851. Issue of law: Ante, sec. 589; when a bar: Post, sec. 1908. Reference: Post, sees. 638 et seq. Leave to answer, after defendant's demurrer overruled: Ante, sec. 472. Default, judgment by: Ante, sec. 585, Judgment generally: Post, sec. 664. CHAPTER VI. OF REFERENCES AND TRIALS BT REFERFE3. S B3S. Reference ordered upon ai^rcement of parties. In what casea. § GS9. Rpfprence orrlpred on motion, In what cases. § clfy the particulars in which such evidence Is iilleKed to be Inauffl- clent. The objection must be stated with so much of the evidence or other matter as Is neces.Mary to explain It, and no more. Only the substance of the reporter's notes of the evidence shfiU be htated. Documents on file In the action or proceeding may be coplerl, or the substance thereof stated, or a reference thereto. siitTlcIent to Identify them, may be made. En. March 11, 1872. Am'd. 1876-6, 92. Cal. Rep. CIL 46. 634; 49. 45; 49. R.'i.^j; 49. 5r.6; 50. 503; 64, 130; 57, 239; 61. 608; 67. 3u4; C8, 591; 84. 531; 84, 532; 89, 24; 89. 140; 90. 62; 90, 259; 02. 239; 99, 226; 104. 211; 108. 455; 112, 607; 117, 184; 122, 407; 130, 418; 132, 614; 144, 540; 146, COS. Prnc. Act, sec. 190. En. April 29, 185L Cal. Rep. CIL 28. 263; 33, 553. § 649. Exceptions signed by Judge and filed with clerk. A bill containing the exception to any decision may be presented to the court or judge for settlement, at the time the decision Is made, and after having been settled, shall be signed by the Judge and filed with the clerk. When the decision excepted to Is made by a tribunal other than a court, or by a Judicial officer, the bill of exceptions shall be presented to, and settled and signed by such tribunal or officer. En. March 11, 1872; 1875-6, 92, Cal. Rep. CIL 47. 641; 50. 445; 54. 417; 67. 5^3; 57. 504; 57. 505; 66, 408; 80, 476; 81, 610; S3. 160; 83. 161; 83. 162; 83. 163; 96. 486; 98, 136; 115. 300; 120. 88; 122, 2: 122. 68; 122. 69; 127, 584; 128. 138; 128. 679; 128, 580; 138, 604; 138, 605; 141. 152; 142, 184. 135 TRIALS IN GENERAU { 650 Prac. Act, sec. 189. En. April 29. 1S51. Am'd. 18C3, 360. Cal. Rep. Cit. 28, 174; 28, 263; 32. 317; 32, 322; 33, 553; 35, 257; 49. 266; 70, 301. § 650. Exceptions not presented at time of ruling. No- tice to adverse party, how settled upon, etc. When a party desires to have exceptions taken at a trial settled in a bill of exceptions, he may, within ten days after the entry of judgment, if the action were tried with a jury, or after receiving notice of the entry of judgment, if the action were tried without a jury, or such further time as the court In which the action is pending, or a judge there- of, may allow, prepare the draft of a bill, and serve the Bame, or a copy thereof, upon the adverse party. Such draft must contain all the exceptions taken upon which the party relies. Within ten days after such service the adverse party may propose amendments thereto, and serve the same, or a copy thereof, upon the other party. The propo.sed bill and amendments mast, within ten days thereafter, be presented by the party seeking the settle- ment of the bill, to the judge who tried or heard the case, upon five days' notice to the adverse party, or be delivered to the clerk of the court for the judge. When received by the clerk he must Immediately deliver them to the judge, If he be in the county; if he be absent from the county, and either party desire the papers to be forwarded to the judge, the clerk must, upon notice In writing of such party, lmmol, C53; 102. 441; 105. SC; 106. 145; 106. 497; 112. 295; 113. 375; 115, 85; 115. 399; 115. n.'}5: 118. 623; 119. 351; 122. 2; 122. 69; 121. 425; 126, 678; 127. 584; 128. 46; 128. 138; 128. 354; 128. 356; 128. 580; 129. 2HI; 129, 282 ; 129, 555; 130. 625; 131. 409; 135. 669; 138. 604; 138. 605; 138. 606; 141. 152; 142. 134; 112, 297; 143, 15; 143, 17; 143, 18; 144, 540; 147, 377. FXirther time: Anto, pec. 473; post, b»>o. 1054. New trial, bill of r.X(Oi)tiua.'?: I'ost. sfv, G50, subd. 2. ReQuisltes of bill of exi o{>tiori.i: Ante. sfv. 648. Bill of exception in criminal causee: S«e Pen. Cod«, tecab 1171 et scq. i 651. Exceptions tfter judgment, etc. Fxeoptlons to any ibN-i.slon m.-icif .ift" r Judcrnont may bo pre.sented to the jud^e al th* time of .such deci.slon, and be settled or noted, as provitied in sec. 649, and a bill thereof may be presented and settlr^d afterward, as provided In sec. 050. and within like periods after entry of tho order, upon api)eal from which said decision Is reviewable. En. March 11, 1872. Am'd. 1873-4, 314. Cal. Rep. Clt. 54, 417; 57, 505; 63, 304; 80, 476; 81. 610; 98, 136; 98. 137; U9. 383; 120, 237; 122, 69; 144, 279; 146, 6S2. § 652. When exception Is refused, appllcatfon to su- preme court to prove the same, etc If the judge In any case refuse to allow an exception in accordance with the facts, the party desiring the bill settled may apply by pe- tition to the supreme court to prove the same. The ap- plication may be made in the mode and manner, and under such reg:ulations as that court may prescribe; and the bill, when proven, must be certified by the chief Jus- tice as correct, and filed with the clerk of the court In which the action was tried, and when so filo- or court, or by referees, a^n. ^ 125, 16; 128, 334; 138, 559; MO, 169, 141, 167. § 6,17 TniAI^ IN GENEKAU W Prac. Act, sec. 192. En. April 29, 1851. Oal. Rep. Cit. 25, 402; 25, 473; 25, 47<; 25, 47C; 25, 477; 25, 4S8; 25, 490; 27, 110; 27, 238; 28, 339; 39, 489; 40, 545; 45, 121. § 657. When a new trial may be granted. The former verdict or oLhvr decision may be vacated and a n.^w trial granted, on the application of tlie party aggrieved, for any of the following causes, materially affectiug the sub- stantial rights of such party: 1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the conrt, or abuse of dis- cretion by which either party was prevented fro58; 74, 270; 79, 703; 83, 228; 88, 49; 90, 327; 93, 619; 102, 260; 108, 52; 108, 286; 123,521; 124,41; 134,206; 136,484; 141,356; 143, 27; 146, 63; 146, 682. Subd. 1—54, 201; 60, 252; 64, 600; 130, 205; 141, 251; 145, 146; 145, 148; 145, 149; 145, 150; 145, 154. Subd. 2—73, 607; 77, 590; 98,385; 101,512; 105,635; 120,479; 125,504; 132, 308; 134, 497; 134, 498. Subd. 3—62, 348; 71. 309; 83, 229; 91, 322; 106, 601. Subd. 4—90, 518; 101, 120; 129, 091. Subd. 5—110, 286; 125, 144; 139. 589; 141, 69. Subd. 6—49. 44; 56, 17; 56, 493; 65, 259; 67, 487; 77, 590; 90, 518; 118, 383; 120, 545; 139, 589; 140, 169. Subd. 7—77, 590; 86, 82; 90. 518. Prac. Act, sec. 193. En. April 29, 1851, Am'd, 1862, 38. CaL Rep. Cit 127, 48. J39 TRIALS IN GENERAL. §§ 6&8, 669 Prac. Act, sec. 622. En. April 29, 1851, Cal. Rep. Cit. 127, 48. How th:3 application is to be made: Post, sec. 6^t. Discretion — Court may ^-ant a new trial of its own mo- tion: Post, sec. 662. Verdict against law: See sec 662, post § 658. On what papers moved for. "When tlie applica- ticn is made for a cause mentioned in the first, second, third, and fourth subdivisions of the last section, it must be made upon affidavits; for any other cause it may be made at the option of the moving party, either upon the minutes of the couit, or a bill of exceptions, or a statement of the case, prepared as hereinafter provided. En. March 11, 1872. Am'd. 1873-4, 314. Cal. Rep. Cit. 47, 59; 61, 163; 61, 295; 64, 600; 86, 82; 90, 263; 104, 287; 113, 512; 114. 450; 118, 636; 120, 237; 125, 503; 128, 47; 128, 138; 130, 205; 141, 251; 143, 27; 145, 146; 146, 682. Mode of application — Affidavits, on: Post, sec. 659, subd. 1; minutes of court, on: Post, sec. 659, subd. 4; bill of exceptions, on: Post, sec. 659, subd- 2; statement of case, on: Post, sec. 659, subd. 3. § 659. Notice of motion, upon whom served, and what to contain. The party intending to move for a new trial must, within ten days after the verdict of the jury, if the action were tried by a jury, or after notice of the decision of the court or referee, if the action were tried without a jury, file with the clerk and serve upon the adverse party a notice of his intention, designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits or the minutes of the court, or a bill of exceptions, or a statement of the case: 1. If the motion is to be made upon affidavits, the mov- ing party must, within ten days after serving the notice, or such further time as the court in which the action is pending, or a judge thereof, may allow, file such affidavits with the clerk, and serve a copy upon the adverse party, who shall have ten days to file counter-affidavits, a copy of which must be served upon the moving party. 2. If the motion is to be made upon a bill of excepticais, and no bill lias already been settled as hereinbefore pro- I «• TRIAL£ IN GKNKUAU MO Tided, tho moving party shall have the same time after Bervlce of the notice to prepare and obtain a settlement of a bill of exceptions as is provided after tho entry of judgment, or after receiving notice of such entry by section 650, and the bill shall be prepared and settled in a similar manner. If a bill of exceptions has been already settled and fll(^d, when the notice of motion ia given, such bill shall be used on the motion. 3. If the motion Is to be made upon a statement of the case, the moving party must, within ten days after service of the notice, or such further time as the court in which the action is pending, or the judge thereof, may allow, prepare a draft of the statement, and serve the same, or a copy thereof, upon the adverse party. If such proposed statement be not agreed to by the adverse party, he must, within ten days thereafter, prepare amendments thereto, and serve the same, or a copy thereof, upon the moving party. If the amendments be adopted, the statement shall be amended accordingly, and then presented to the judge who tried or heard the cause, for settlement, or 'b* deliv- ered to the clerk of the court for the judge. I^ not adopted, the proposed statement and amendments shall, within ten days thereafter, be presented by the moving party to the judge, upon five days' notice to the adverse party, or delivered to the clerk of the court for the judge; and thereupon the same proceedings for the settlement of the statement shall be taken by the parties, and clerk, and judge, as are required for the settlement of bills of excep- tion by section 650. If the action was heard by a referee, the same proceedings shall be had for the settlement of the statement by him as are required by that section for the settlement of bills of exception by a referee. If no amendments are served within the time designated, or, if served, are allowed, the proposed statement and amend- ments, if any, may be presented to the judge or referee, for settlement, without notice to the adverse party. When the notice of the motion designates, as the ground of the motion, the insufficiency of the evidence to justify the ver- dict or otner decision, the statement shall specify the particulars in which such evidence is alleged to be insuf- ficient. ■^'Tien the notice designates, as the ground of the motion, errors in law occurring at the trial, and ex- cepted to by the moving party, the statement shall specify the particular en-ors upon which the party will rely. If no such specifications be made, the statement shall be disre- garded on the hearing of the motion. It is the duty of the jfl TRIALS IN GENERAL. ; 539 judge or referee, in settling the statement, to strike ou-;. of it all redundant and useless matter, and to make the state- ment truly represent the case, notwithstanding the assent of the parties to such redundant or useless matter, or to any inaccurate statement. When settled, the statement shall be signed by the judge or referee, with his certificate to the effect that the same is allowed, and shall then be filed with the clerk. 4. When the motion is to be made upon the minutes of the court, and the ground of the motion is the insuf- ficiency of the evidence to justify the verdict or other decision the notice of motion must specify the particulars In which the evidence is alleged to be insuflBcient; and, if the ground of the motion be errors in law occurring at the trial, and excepted to by the moving party, the notice must specify the particular errors upon which the party will rely. If the notice do not contain the specifications here indicated, when the motion is made on the minutes of the court, the motion must be denied. En. March 11, 1872. Am'd. 1873-4, 315. Cal. Rep. Cit. 49, 555; 54. 182; 54, 545; 56, 610; 57, 231, 57, 632; 58, 82; 59, 100; 61, 295; 63, 245; 65, 236; 66 470; 66, 411; 66, 472; 67, 590; 67, 602; 68, 23; 68, 487; 71, 558; 71, 559; 71, 563; 76, 596; 77, 526; 78, 108; 80, 414; 83, 161; 86, 82; 89, 40; 90, 264; 93 201; 95, 249; 95, 250; 97, 16; 97, 515; 98, 316; 99, 175; 99, 178; 100, 577; 112, 7; 112, 590; 115, 26; 116, 45; 116 138; 117, 331; 119, 187; 119, 351; 120, 545; 125, 52; 125, 116; 126, 678; 1^,8, 4?; 128, 138; 128, 139; 129, 357; 129, 358; 129, 360; 130, 192; 131, 574; 132, 614; 135, 119; 13<5, 605; 138, 642; 139, 15; 143, 27. Subd. 1—129, 691; 141, 41. Subd. 5;— 199, 281; 141, 153. Subd. 3—54, 12a; ?4, 596; 55, 27S; ?0, 432; 61, 608; 63, 418; 65, 260; 66, 318; 66, 405; 66, 409; 66, 410; 66, 521; 67, 258; 68, 73; 68, 376; 68, 641; 69, 116; 69, 644; 70, 538; 73, 476; 74, 532; 75, 352; 76, 9; 76, 10; 76, 105; 76, 595; 76, 35fi- 79, 683; 82, 55; 83, 320; 84, 300; 85, 165; 89 612; 90, 71; 92, 657; 93, 20D; 95, 445; 97, 462; 101, 430; 105, 412; 106, 145; 110, 213; 112, 7; 119, 186; 120, 566; 121, 146; 121, 415; 122, 577; 124, 410; 125, 271; 126, 678; 128, 308; 128, 525; 131, 409; 133, 503; 134, 484; 136, 512; 138, C42; 139, 652; 140, 327; 141, 68: 141, 153; 141. 621; 141, 740; 144, 540. Subd. 4—69, 204; 74, 59; 83. 162; se, 645; 94, 428; 103, 534; 113, 511; 114, 71; 126, 52; 134, 484; 133, 605. Prac. Act, sec. 623. En. April 29, 1851, Coda dvU Proa— 16. SS ceo. ■« TRIAI-S IN GK>rERAL.. Ml Bill of exceptions, settling: Ante, sec. G50. Extension of time: Post, sec. 1C54. Time to except to court commissioner's report on mat- ters other than issues cf fact raised by pleadings: Ante, sec. 2r)9. Minutes of court, motion on, statement: Post, sec. 661. 5 660. Motion to be heard at the time specified, or dis- missed. The ap[)lication for a new trial shall bo heard at the earliest practicable period after notice of the motion, if the motion is to be heard upon the minutes of the court, and in other cases, after the affidavits, bill of exceptions, or statement, as the case may be, are filed, and may be brought to a hearing upon motion of either party. On such hearing reference may be had in all cases to the pleadings and orders of the court on file, and when the motion is made on the minutes, reference may also be had to any depositions, documentary evidence, and phono- graphic report of the testimony on file. En. March 11, 1872. Am'd. 1873-4, 317. Cal. Rep. Cit. 65. 260; 79. 683; 82. 55; 90. 264; 90, 265; 102. 586; 105, 86; 114. 71; 127. 357; 127, 360; 128, 47; 128, 325; 131, '.09; 137. 45; 143, 27. Chambers, motions for new trials may be heard at: Ante, sec. 166. § 661. Record on appeal. The judgment roll and the affidavits, or bill of exceptions, or statement, as the case may be, used on the hearing, with a copy of the order made, shall constitute the record to be used on appeal from the order granting or refusing a new trial, unless the motion be made on the minutes of the court, and in that case the judgment roll and a statement to be subsequently prepared, with a copy of the order, shall constitute the record on appeal. Such subsequent statement shall be proposed by the party appealing, or intending to appeal, within ten days after the entry of the order, or such further time as the court in which the action is pending, or a judge thereof, may allow, and the same or a copy thereof be served upon the adverse party, who shall have ten days thereafter to prepare amendments thereto and serve the same or a copy thereof, upon the party appealing, or intending to appeal; and thereafter proceedings shall be had. and within like periods, for the settlement of the statement as provided by section 659, but the statement shall only contain the grounds argued before the court for a new trial, and so much of the evidence or other J4S TIUALS IN GENERAL. ; 662 matter as may be necessary to explain them; and it shall be the duty of the judge to exclude all other evidence or matter from the statement. En. Marcli 11, 1872. Am'd. 1873-4, 318. Cal. Rep. Cit 55, 44; 57, 293; 64, 594; 66, 405; 66, 407 66, 409; 66, 410; 66, 411; 66, 414; 68, 23; 69, 73 78, 385; 79, 683; 81, 639; 86, 645; 90, 264; 92, 64 96, 114; 105, 86; 110, 560; 110, 561; 114, 71; 114, 72 120, 236; 122, 576; 128, 47; 128, 138; 134, 484; 138. 604 141, 152; 144, 280; 146, 11; 147, 437. Prac. Act, sec. 194. En. April 29, 1851. Cal. Rep. Cit. 82, 317; 33, 554; 36, 122. Prac. Act, sec. 195. En. April 29, 1851. Am'd. 1861, 590 1863, 643; 1864, 246; 1865-6, 845. Cal. Rep. Cit. 2, 307; 3, 89; 9, 68; 9, 77; 9, 247 22, 658; 24, 181; 24, 355; 24, 356; 25, 488; 25, 489 26. 284; 27, 110; 27, 112; 27, 113; 27, 114; 27, 320 27 338; 27, 339; 27, 410; 28, 261; 28, 303; 28, 311 28, 312; 28, 413; 28, 418; 32. 172; 32, 317; 32. 318 32, 319; 32, 320; 33, 210; 33, 472; 34, 91; 34, 239 34, 620; 35. 257; 36, 120; 36, 122; 37, 338; 38, 202 38, 280; 39, 33; 39, 34; 39, 253; 41. 251; 41, 404 41. 407; 41. 518; 41. 621; 43. 322; 43, 542; 43, 576 44, 211; 44, 212; 45, 121; 46, 4; 46, 42; 47, 164 47. 427; 49. 341; 141. 192. Prac. Act, sec. 196. En. April 29, 1851. Am'd. 1863, 361. Cal. Rep. Cit. 27. 339. Judgment roll: Post. sec. 670. Affidavits, bill of exceptions, statement: Ante, sec. 659, subds. 1, 2. 3. Minutes of court: Ante. sec. 660 § 662. New trial on court's own motion. The verdict of a jury may also be vacated, and a new trial granted by the court in which the action is pending, on its own mo- tion, without the application of either of the parties, when there has been such a plain disregard by the jury of the instructions of the court, or the evidence in the case, as to satisfy the court that the verdict was rendered under a misapprehension of such instructions, or under the in- fluence of passion or prejudice. The order of the court may be reviewed on appeal in the same manner as orders made on motions for a new trial, and a statement to be §§cnr., 0<;3% trials IN general. 244 usc'tl on suoli appeal may be prepared in the same manner us statements after a motion is heard upon the minutes of the court, as provided in section 601. En. Stats. 1873-4, 819. Cal. Eep. Cit. 64, 594; 74, .'59; 91, 212; 103, 505; 118, 383; 123, 521; 128, M3; 128, 344; 134, 491; 136, 484; 143, 26; 143, 27; 143, 30. § 663. Vacation of judgment. A judgment or decree of a superior court, when based upon findings of fact made by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of such party and entitling him to a different judgment: 1. Incorrect or erroneous conclusions of law not con- sistent with or not supported by the findings of fact; and in such case when the judgment is set aside the con- clusions of law shall be amended and corrected. 2. A judgment or decree not consistent with or not supported by the special verdict. En. Stats. 1873-4, 319. Am'd. 1877-8, 100. Rep. 1880, 64. En. 1897, 58. Cal. Rep. Cit. 105, 111; 121, 579; 125, 241; 126, 108; 131, 325; 140, 1G9; 141, 1G5; 141, 160; 141, 67; 142, 468; 146, 456; 146, 51. § 6631/2. Notice of motion. The party intending to make the motion mentioned in the last section must, within ten days after notice of the rendition of judgment or decree, serve upon the adverse party and file with the clerk of the court a notice of his intention, designating the grounds upon which the motion will be made, and specifying the particulars in which the conclusions of law are not consistent with the finding of facts, or in which the judgment or decree is not consistent with the special verdict. The said party must, within sixty days after giv- ing such notice of intention, make the motion to the court, after giving due notice of the time of making such mo- tion to the adverse party; but the hearing or consideration of such motion may be further continued by the court. En. Stats. 1897, 59. Cal. Rep. Cit. 125, 241; 131, 325; 140, 169; 141, 165; 141, 166. 2« GIVING AND ENTERING JUDGMENT. jj 6M, 66S CHAPTER VIII. THE MANNER OF GIVING AND ENTERING JUDGMENT. I ??'*• Judgment to be entered In twenty-four hours, etc. I 665. Case may be brought before the court for argument I :^- When counterclaim established exceeds plaintiff's demand 5 €67. In replevin, Juvlgment to be in the alternative, and with dam- ages. Gold coin or currency Judgment. 8 668. Judgment book to be kept by the clerk. 5 669. If a party die after verdict. Judgment may be entered, but not to be a lien. § 670. Judgment-roll, what to constitute. 8 671. Judgment lien, when It begins and when It expires. 8 672. Docket, how kept, and what to contain. 8 673. Docket to be open for Inspection without charge. 8 674. Transcript to be filed In any county, and Judgment to becoma a lien there. fi 675. Satisfaction of a Judgment, how mode. 8 675a. Batisfactlon of mortgage recordation; form. 8 676. Defendant In suit to set aside fraudulent conveyance may glva bond. 9 677. Bond, condition in and amount of. 8 677%. Bond, filing of. I 678. Objections to sureties. I 5!^^' J"stincation of sureties. Approval and disapproval of bonvj. 8 679. Objection because estimated value In bond less than market value. 8 679%. Sureties, how Justify. 6 6S0. Bond, when becomes effective. ( 680%. Judgment may bo rendered on bond when. § 664. Judgment to be entered In twenty-four hours, eto. When trial by Jury has been had. Judgment must be en- tered by the clerk, In conformity to the verdict, within twenty-four hours after the rendition of the verdict, unless the court order the case to be reserved for argument or further consideration, or grant a stay of proceedings. En. March 11, 1872. Cal. Rep. Clt. 50, 524; 75, 565; 76, 534; 79, 73; 97, 425; 97, 426; 126, 324; 185, 611; 135, 612. Prac. Act, sec. 197. En. April 29, 1851. Cal. Rep. Clt. 28, 70; 28, 418; 28, 420. Reserving, for argument or further consideration: Post, sec. 665. Stay of proceedings by appeal: Post, sec. 949. Arrest of defendant: Sec. 684. § 665. Case may be brought before the court for argu- ment. When the case is reserved for argument or further consideration, as mentioned in the last section. It may be SS 6M, M7 an'INO ANT) EXTERIN'G JUDOMRNT. 2M brought by elthor party before the court for argument En. March 11. 1872. Prac. Act, sec. 198. En. April 29, 1851. Am'd. 1854, C2. Cal. Rep. Clt. 28, 420. S 666. When counterclaim established exceeds plain- tiff's demand. If a CDunterclriim, established at the trial, exceed the plaintiff's demand, judgment for the defendant must be given for the exce.s.s; or If It appear that the defendant Is entitled to any other aflirniative relief. Judg- ment must be given accordingly. En. March 11, 1872. Prao. Act, sec. 199. En. April 29, 1851. Cal. Rep. Clt. 19, 658; 27. 320; 32, 629; 41, 69. Counterclaim, generally: Ante, sees. 438, 439; dismissal or non.suit. where none: Ante. .sec. 581, subd. 1; exceeding plaintiff's demand: Ante, sec. 626. § 667. In replevin, Judgment to be In the alternative, and with damages. Gold coin or currency judgment. la an action to recover the possession of personal property. Judgment for the plaintiff may be for the possession or the value thereof in case a delivery cannot be had, and dam- ages for the detention. If the property has been delivered to the plaintiff, and the defendant claim a return thereof. Judgment for the defendant may be for a return of the property or the value thereof. In case a return cannot be had, and damages for taking and withholding the same. In an action on a contract or obligation in writing, for the direct pajTnent of money, made payable In a specified kind of money or currency, judgment for the plaintiff, whether it be by default or after verdict, may follow the contract or obligation, and be made payable in the kind of money or currency specified therein; and in all actions for the recovery of money. If the plaintiff allege in his complaint that the same was understood and agreed by the respective parties to be payable In a specified kind of money or currency, and this fact is admitted by the de- fault of the defendant or established by evidence, the judg- ment for the plaintiff must be made payable in the kind of money or currency so alleged in the complaint; and in an action against any person for the recovery of money re- ceived by such person in a fiduciary capacity, or to the use of another, judgment for the plaintiff must be made payable in the kind of money or currency so received by such person. En. March 11, 1872. «7 GIVING AND ENTERING JUDGMENT. gg 668-670 Cal. Rep. CIt. 54, 193; 54, 195; 56, 459; 61, 97; 63. 552- 65. 238; 66. 487; 67. 606; C8. 6; 71. 504- 78 577- 78. 578; 83. 548; 86, 483; 87, 346; 87. 347; 89 463- 89. 504; 90. 560; 91, 292; 92, 225; 101. 239- 104 689- 114. 454; 119, 322; 130. 193; 130. 236; 132, 319; 133 85: 142, 309. Prac. Act, sec. 200. En. April 29, 1851. Am'd. 1863, 687: 1869-70, 295. Cal. Rep. CIt. 7, 571; 11, 277; 24, 149; 26, 484; 41, 518: 45. 77; 46. 289; 49. 314; 142, 311. Money, how computed and stated: See Pol. Code. sec. 3274. Replevin — Judgment, verdict; Ante. sec. 627; value, cor- recting affidavit of: Ante. sec. 473.' Execution: Post, sec. 682, subd. 5. Replevin, return to defendant: See ante, sees. 514, G27. Specific money or currency, fiduciary capacity: Post. sec. 1407. § 668. Judgment book to be kept by the clerk. The clerk must keep, with the records of the court, a book to be called the "judgment book," In which judgments must be entered. En. March 11, 1872. Cal. Rep. Cit. 72, 193; 76, 373; 84, 488; 99, 515; 102, 623- 104, 552; 110. 227; 126, 649; 126, 685; 134, 377; 140, 33. Prac. Act, sec. 201. En. April 29, 1851. Register of actions: Pest, sec. 1052. § 669. If a party die after verdict, Judgment may be entered, but not to be a lien. If a party die after a verdict or decision upon any issue of fact, and before judgment, the court may nevertheless render judgment thereon. Such judgment is not a Hen on the real property of the de- ceased party, but is payable in the course of administration on his estate. En. March 11, 1872. Cal. Rep. CIt. 108, 482; 108, 483; 124, 230. Prac. Act, sec. 202. En. April 29, 1851. Cal. Rep. Cit. 29, 367; 108, 483. Payable in course of administration: Post, sec. 1506, and see sec. 1504. Death, suggestion of: Ante, sec. 385. Executor, etc.. Judgment against, form of: Post, sec. 1504. § 670. Judgment-roil, what to constitute. Immediately after entering the judgment, the clerk must attach together I 670 GIVING A^ro ENTERING JUDGMENT, MS and file the following papers, which constitute the Judg- ment-roll: 1. In case the complaint be not answered by ajiy defend- ant, the summons, with the alliiiavit or proof of service; the complaint with a mc-morandum indorsed thereon tliat the drfault of the defendant in not answering was entered, and a copy of the judgment; and in case where the service BO made be by publication, the affidavit for publication of summons, and the order directing the publication of summons, must also be included. 2. In all other cases the pleadings, a copy of the verdict of tile jury, or finding of the court, or referee, all bills of exceptions taken and filed, atd a copy of any ordi r made on demurrer or* relating to the change of parties and a copy of tiie judgment; if there arc two or mon defendants in the action, and any one of them has allowel judgment to pass against him by default, the summons with proof of its service on such defendant, must also bo added to the other papers mentioned in this subdivision; and if the service or. such defaulting defcmlant be by publication, then the affidavit for publication, and the ordf directing the publication of the summons in such casc:\ must also be included. En. March 11, 1872. Am'd. 1873-1, 319; 1875-6, 93; 1895, 45. Cal. Rep. Cit. 47, 641; 47, 642; 53, 283; 55, 44; 56, 491; 57, 240; 61, 163; 64, 542; 64, 592; 65, 118; 72, 8S; 75, 378; H, 230; 78, 385; 79, 267; 79, 503; 79, 602; 85, 579; 86, 400; 87, 154; 87, 26G; 89, 486; 93, 606; 95, 455; 95, 638; 97, 92; 97, 182; 98, 109; 98, 283; 99, 281; 99, 515; 100, 613; 102, 623; 103, 20; 104, 246; 104, 550; 104, 552; 105, 111; 110, 560; 115, 270; 115, 69] ; 120, 38; 121, 12; 123, 79; 126, 347; 133 255; 134, 429; 139, 697; 140, 357; 140, 675; 146, 213. Subd. 1—68, 425; 73, 601; 119, 109; 137, 428; 143, 677; 144, 416; 145, 605. Subd. 2—54, 546; 90, 60; 124, 224; 125, 227; 130, 406. Prac. Act, sec. 203. En. April 29, 1851. Am'd. 1S62, 110; 1865-6, 846. Cal. R'^p. Cit. 27, 109; 28, 174; 28, 305; 28, 418; 32, 174; 33, 512; 33 563; 34, 403; 34, 425; 34 614; 36, 114; 41, 137; 49, 308; 74, 501. 2« GIVING AND ENTERING JUDGMENT, §§671, 67? Judgment-roll in criminal ca«:es: See Pen. Code, sec. 1207. Clerk's powers and duties, county clerk: See Pol. Code, sees. 4204, 4205. § 671. Judgment lien, when It begiri'S ani whe-r it ex- pires. Immediately after filing the judgment-roll, the clerk must make the proper entries of the judgment, under ai*- propriate heads, in the docket kept by him; and from th4 time the judgment is docketed it becomea a lieu upon all the real property of the juasrment debtor not exempt froirii execution in the county, otvr.ed by him at the time, or which he may afterwards acquire, until the lien ceases. The lien continues for five rears, unless the enforcement of the judgment be staj^ed on appeal ty the executioa of a sufficient undertaking as provified in this code, in which case the lien of the judgment and any lien by virtue of an attachment that has been issued and levied in the action ceases. En. March 11, 1872. Ain'd. 1873-4, 320; 1895, 36. Gal. Rep. Cit. 55, 533; 61. 147; 61, 286; 61. 287; 70, 156 95, 389; 97, 204; 97, 206; 102, 623; 105, 111; 111, 499 112, 93; 114, 547; 119. 22; 119, 94; 124, 230; 127, 11 132, 12g; 137, 356; 138, 303; 142, 538; 142, 539. Prac. Act, sec 204. En. April 29, 1851. Cal. Rep. Cit 6. 134; 14, 57; 25, 346; 25, 347; 25, 350; 25, 351; 25. 352; 25, 357; 25, 359; 28, 52,5; 31. 397; 37, 146; 39, 144; 46. 656; 49, 194. Judgment docket: See post, sees. 672-674, Recording transcript of docket in another county: Post, sec. 674. Judgment after decedent's death, on verdict, etc., before: Post, sec. 1506. Undertaking on apjJeal: Post, sees. 941 et seq. § 672. Docket, how kept, and what to contain. The docket mentioned in the last section is a book which the clerk keeps in his office, with each page divided into eight columns, and headed as follows: Judgment debtors; lud,'^- ment creditors; judgment — time of entry; where enteied in judgment book; appeals — when taken; judgment of appellate court; satisfaction of judgment; when enteired. If judgment be for the recovery of money or damages, the amount must be stated in the docket under the head of judgment; if the judgment be for any other relief, a §§ (rn-675 GIVING /ND ENTliUlNG JUDGMENT. KO monioranduni of the general character of the relief granted must bo stated. The nainos of the defendants must be entered in alphabetical order. En. March 11, 1872. Cal. Rep. Cit. 61, 286; 90, 399; 102, 623; 124, 676. Prac. Act, sec. 205. En. April 29, 1851. Cal. Rep. Cit. 50, 517. Docketing judgment: Ante, Bee. 671. Duty of clerk to keep docket: Pol. Code, sec. 4204. § 673. Docket to be OTsened for Inspection without charge. The docket kept by the clerk is open at all timrs, during the office hours, for the inspection of the public, without charge. The clerk must arrange for several dock- ets kept by him in such a mannner as to facilitate their in- spection. En. March 11, 1872. Prac. Act, sec. 206. En. April 29. 1851. Public writings, open to Inspection: Post, sees. 1892, 1893. § 674. Transcript to be filed In any county, and judg- ment to become a lien there. A transcript of the original docket, certified by the clerk, may be filed with the re- corder of any other county, and from the time of the filing the judgment becomes a lien upon all the real property of the judgment debtor, not exempt from execution, in such county, owned by him at the time, or which he may afterwards, and before the lien expires, acquire. The lien continues for two years, unless the judgment be pre- viously satisfied. En. March 11, 1872. Cal. Rep. Cit. 100, 591; 138, 302; 138, 303. Prac. Act, sec. 207. En. April 29, 1851. Judgment may be recorded without acknowledgment: Civ. Code, sec. 1159. Recording judgment in county where land situated: Sec. 400, ante; but see sec. 78. Recording generally: Civ. Code, sees. 1158 et seq. Justice's court judgment, abstract creates lien: Post, sec. 900. § 675. Satisfactior of a judgment, how made. Satisfac- tion of a judgment may be entered in the clerk 's docket upon an execution returned satisfied, or upon an acknowl- 251 GIVING AND ENTERING JUDGMENT. §§ 675a. 676 edgment of satisfaction filed with the clerk made in the manner of an acknowledgment of a conveyance of real property, by the judgment creditor, or by his indorsement on the face, or on the margin of the record of the judg- ment, or by the attorney, unless a revocation of his au- thority is filed. Whenever a judgment is satisfied in fact, otherwise than upon an execution, the party or attorney must give such acknowledgment, or make such indorse- ment, and upon motion the court may compel it, or may order the entry of satisfaction to be made without it. En. March 11, 1872. Am'd. 1873-4, 320. Cal. Rep. at. 60, 621; 71, 448; 108, 286; ISO, 277. Prac. Act, sec. 208. En. April 29, 185L Cal. Rep. Cit 28, 418. .Acknowledgments — Justices of the supreme court, Judge3 of superior courts, and justices of the peace, and police judges, within certain limits, have power to take and certify acknowledgments of satisfaction of Judgments: Ante, sec. 179. Attorney, power to bind client: Ante, sees. 283-285. § 675a. Satisfaction of mortgage recorded. Whenever a mortgage on real property is foreclosed in this state and the property covered by such mortgage is sold under and pursuant to the decree of foreclosure entered in the action in which such foreclosure is had, it shall be the duty of the sheriff, or commissioner making the sale, as the case may be, within five days after the purchaser at the sale becomes entitled to a deed from such sheriff, or commis- sioner thereunder, to enter upon the margin of the county records where such mortgage is recorded, if the same be recorded, a satisfaction of the same. Such satisfaction shall be substantially in the following form: Full satisfaction and discharge of the within mortgage by foreclosure is hereby entered this day of 19.. Decree of foreclosure entered the day of 19.. In cause No entitled, vs Sale under such decree had the .... day of 19.... En. Stats. 1905, 243. Sheriff (commissioner). § 676. Defendant In suit to set aside fraudulent con- veyance may give bond. "^Tiere an action is commenced to set aside a transfer or conveyance of property on the grounds that such transfer or conveyance was made to 5§ C77. 677V4 GIVING AND liNTKUlNG JUDGMENT. ZSl hinder, delay or defraud a creditor or creditors, the transferee or grantee to whom it is alleged the property was transferred or conveyed to hinder, delay or defraud creditors or the successors or assigns of such ti-ansfereo or grantee, may give an undertaking as herein provided, and when such undertaking is given as herein provided, the transferee or grantee to whom it is alleged the prop- erty was transferred or conveyed to hinder, delay or defraud creditore, or the successors and assigns of such transferee or grantee, may sell, encumber, transfer, con- vey, mortgage, pleon the hearing and examination into the sufficiency of a surety, witness may be required to attend and evidence may be procured and Introduced in the sqjne manner as in trial of civil cases. Upon such hearing and examination the court shall make its order, in writing, approving or disapproving the sufficiency of the sureties or surety on Buch undertaking. In case the court disapproves of the surety or sureties or any undertaking, a new undertaking may be filed and served, and to any undertaking given under the provisions of this act the same objection to the sureties may be made and the same proceedings had as in case of the first undertaking filed and served. En. Stats. 1903, 99. § 679. Objection because estimated value In bond less than market value. When objection is made to the under- taking upon the ground that the estimated value of the property, as stated in the undertaking, is less than the market value of the property, the transferee or ^antee, or the successor or assigns of such transferee or grantee giving the undertaking may accept the estimated value stated by the plaintiff in said objection, and a new under- taking may at once be filed, with the plaintiff's estimate J5 679V4-«80H GIVING AND ENTKUING JUDGMENT. »• Stated therein as the estimated value, and no objection shall thereafter be made upon that ■groumi; if the plain- tiff's estimate of the market value is not accepted, the transferee or ^antee, or the successor or assigns of the grantee or transferee giving such undertaking, upon ten days' notice to the plaintiff, shall move the court in which the action is pending to estimate the market value of the property, and upon the hearing of such motion, witnesses may be required to attend and testify, and evidence may be produced in the same manner as in the trial of civil ac- tions. Upon the hearing of the motion the court snail estimate the market value of the property, and if the esti- mated value of the property as made by the court exceeds the estimated value as stated In the undertaking, a new undertaking shaJl be filed and served with the market value determined by the stated value therein as the esti- mated value of the property. En. Stats. 1903, 100. S 67914. Sureties, how Justify. The sureties shall lus- tify upon the undertaking as required by section one thousand and fifty-seven of the Code of Civil Procedure, En. Stats. 190a, 100. 5 680. Bond, when becomes effective. The undertaking shall become effective for the purpose stated in section 1 of this act, ten days after service of copy thereof on the plaintiff, unless objection to such undertaking is made S9 in this act provided, and in case objection is so nade to the undertaking filed and served, the same shall become effective for such purpose when an order is ma<}e by such court approving the sureties, when the sure^v or sureties are objected to, or affirming the estimate of the value of property when objection is made thereto, or in case any objection to the undertaking is sustained by the court when a new undertaking is filed and served as required by this act, to which no objection is made, or if made Is not sustained by the court En. Stats. 1903, 100. § 680'/^. Judgment may be rendered on bond when. If judgment be rendered in said action that the alleged trans- fer or conveyance was made to hindeir, delay or defraud creditors, then judgment shall be rendered in sucTi action without further proceeding In favor of plaintiff and against the principal and sureties on said undertaking for the sum for which said undertaking was executed accord- ing to the conditions thereof. En. Stats. 1903, 101. THS SXSCUTIOM. TITLE IX. OF THE EXECUTION OF THE JUDGMENT IN CIVIL ACTIONS. Chaptei- I. The Execution, §§ 681-7131^. IL Proceedings Supplemental to the Execution, §§ 714-721. CHAPTER L THE EXECUTION. { 68t. Wtthin what time executloa may Issue. § C82. Who may issue the execution, Its form, to whom directed, and what It shall require. 5 683. When made returnable. § 684. Money judgments, and others, how enforced. § 685. Execution after Ave years. I 686. When execution may Issuu against the property of a party after his death. 5 CS7. Execution, how and to whom Issued. , § 688. What shall be liable to be seized In execution. Not to be affected till a levy Is made. § 689. When property is claimed by a third party. Indemnity § C90. WTiat exempt from execution. § 691. Writ, how executed. § 6J2. Notice of sale under execution, how given. § 693. Selling without notice, what penalty attached. 5 634. Sales, how conducted. Neither the officer conducting It nor his deputy to be a purchaser. Real and personal property, how sold. Judgment debtor, if present, nxay direct order of sale, an\l the officer shall follow his directions. § 695. If purchaser refuses to pay purchase money, what proceedings. § 696. Officer may refuse such purchaser's bid after. § 697. These two sections not to make officer liable beyond a certain amount. 5 698. Personal property, not capable of manual delivery, how deliv- ered to purchjtser. § 699. Personal property not capable of manual delivery, how sold and delivered. § 700. Real property, when absolute sale or not. In the latter case, what the certificate must contai«. § 701. Real property so sold, by whom It may be redeemed. § 702. When It may be redeemed, and ndemptlon money. § 703. When judgment debtor or other redemptloner may redeem. § 704. In cases of redemption, to whom the payments are to be ma'.le. § 705. What a redemptioner must do In order to redeem. § 706. Until the expiration of r' lomption time court may restrain waste on the property. What considered wa.ste. 5 707. Rents and profits. 55 381, 683 THE EXECUTION. ■• I 708. If purchacir of ro.-\l property be evicted for Irrerularltles In Bale, What he may recover and from whom. When Judgment to be revived. Petition for the purpose, bow and by whom ma'de. g 709. Party who pays more than his share may compel contribution. g 710. Ju'.lgments against officers, how enforced. § 710. Claimant of property may kIvc bond and release property. § 710V4. Claim of property, bond, amount of and conditions of. § 711. Cl.ilm of property, bond, filing, and serving. 5 71H4. Claim of property, bond, objections to. § 712. Cioln of property, justification, approval and disapproval. § 7121^. ClPbn of property, bond, estimate of value and new bond. § 713. Claim of property, bond, justification of sureties. { 713V4. Cla-'m of property, bond, when becomes effectual. Gmi. r.it. to Chap.— Cal. Rep. Cit. 138. 648. § i^^. Within what time execution may issue. The party in whose favor judgment is given, may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement. En. March 11, 187:i. Cal. Rep. Cit. 61, 147; 81, 203; 81, 204; 81, 205; 86, 278; 86, 386; 92, 397; 94, 220; 94, 223; 99, 171; 99, 283; 107, 132; 111, 362; 114, 547; 137, 311; 138. 193; 138, 194. Prac. Act, sec. 209. En. April 29, 1851. Cal. Rep. Cit 3, 215; 12, 468; 20, 55; 22, 650; 28, 70; 28, 418; 30, 622; 34, 614; 37. 13; 37, 145; 137. 311; 146, 742. Time for execution, when extended: Post, sec. 685, Appeal, stay of execution: Post. sees. 942-945. Where money deposited by defendant, judgment is to be satisfied thereon by clerli: Ante, sec 500. Attachment — If judgment plaintiff has attached property, the sheriff must satisfy the judgment out of it: Ante sec. 550. Executor or administrator — No execution must issue upon judgment against, upon claims for money du« frc'ja es- tate: Post. sec. 1504. Receiver, in proceedings in aid of execution: Ante, sec. 564, subd. 4. § 682. Who may issue the execution, Its fofvn, tt> ^^rhetm directed, and what it shall require. The writ of execution must be issued in the name of the people, sealed with the seal of the court, and subscrioed by the cleri, and be directed to the sheriff, and it must intelligibly refer to the judgment, stating the court, the county whers the juds- ment-roll is filed, and if it be for money, the amouui there- of, and the amount actually due thereon, and ii mao«a 257 THE EXECUTION. § 683 payable in a specified Ivind of money or currency, as pro- vided in section six hundred and sixty-seven, the execu- tion must also state the kind of money or currency in which the judgment is payable, and must require the sheriff substantially as follows: 1. If it be against the property of the judgment debtor, it must require the sheriff to satisfy the judgment, with interest, out of the personal property of such debtor, and if sufficient personal property cannot be found, then out of his real property; or if the judgment be a lien upou real property, then out of the real property belonging to him on the day when the judgment was docketed, or at any time thereafter; or if the execution be issuad to a county other than the one in which the judgment was recovered, on the day when the transcript of the docket was filed in the office of the recorder of such county, stat- ing such day, or any time thereafter; 2. If it be against real or personal property in the hancTs of the personal representatives, heirs, devisees, legatees, tenants, or trustees, it must require the sheriff to satisfy thv5 judgment, with interest, out of such property; 3. If it be against the person of the judgment debtor, it must require the sheriff to arrest such debtor and commit him to the jail of the county until he pay the judgment with interest, or be discharged according to law; 4. If it be issued on a judgment made payable in a speci- fied kind of money or currency, as provided in section six hundred and sixty-seven, it must also require the sheriff to satisfy the same in the kind of money or currency in which the judgment is made payable, and the sheiiff must refuse payment in any other kind of money or currency; and in case of levy and sale of the property of the judg- ment debtor, he must refuse payment from any purchaser at such sale in any other kind of money or currency than that specified in the execution. The sheriff, collecting money or currency in the manner required by this chapter, must pay to the plaintiff or party entitled to recover the same, the same kind of money or currency received by him, and in case of neglect or refusal so to do, he shall be liable on his official bond to the judgment creditor in three times the amount of the money so collected; 5. If it be for the delivery of the possession of real or personal property, it must require the sheriff to deliver Code CivU Proc— 17. g 688 THE EXECtTTION. W the possession of the same, describing It, to the party en- titied thereto, rind may, at the same time, require the shoriff to satisfy any costs, damages, rents, or protlts, recovered by the same judgment, out of the personal prop- erty of the person against whom It was rendered, and the vaiue of the property for which the judgment was rendered to be specified therein if a delivery thereof cannot be had; and If sufficient personal property cannot be tound, then out of the real property, as provided in the first sub- division of this section. En. March 11, 1872. Cal. P.ep. Cit. 53, 558; 79, 601; 94, 220; 121, 197; 131, 529: 137, 203; 140, 194; 145, 552; 145, 554. Subd. 1—119, 194; 131, 600. Subd. 4—130, 599. P.-ac. Act, sec. 210. En. April 29, 1851. Am'd. 1863, 688. Cal. JSep. Cit. 7, 571; 11, 277; 24, 149; C. 166; K, lo7i 37, 132; 39, 144. Contempt in interfering with: Post, sees. 1209, 1210, Juiigmcnt a lien: Ante, sees. 671, G74. Property leviable: Ante, sec. 542; post, sec. 688. Levy without process a misdemeanor: See Pen. Code, sec. 146. Subd. 4. Judgment payable in specified kind of money: See ante, sec. 667. § 683. When made returnable. The execution may be made returnable at any time not less than ten nor more than sixty days after its receipt by the sheriff, to the clerk with whom the judgment-roll is filed. When the execution is returned the clerk must attach it to the judgment-roll. If any real estate be levied upon, the clerk must record the execution and the return thereto at large, ar.il certify the same under his hand as true copies, in a book to be called the "execution book," which book must be indexed with the names of the plaintiffs and defendants in execu- tion, alphabetically arranged, and kept open at all times during ofiice hours for the inspection of the public without charge. It is evidence of the contents of the originals whenever they or any part thereof may be destroyed or mutilated. En. March 11, 1872. Cal. Rep. Cit. 94, 220; 94, 223; 146, 742. Prac. Act, sec. 212. En. April 29, 1851. Am'd. 1866, 703. Return, failure to make without delay, liability of sheriff: See Pol. Code, sec. 4179. 259 THE EXECUTION. gj 684, S8S § 684. Money Judgments, and others, how enforced. When the judgment is for money or the possession of real or personal property, the same may be enforced by a writ of execution; and if the judgment direct that the defendant be arrested, the execution may issue against the person of the Judgment debtor, after the return of an execution against his property unsatisfied In whole or part; when the Judgment requires the sale of property, the same may be enforced by a writ reciting such Judgment or the material parts thereof, and directing the proper officer to execute the judgment, by malting the sale and applying the pro- ceeds in conformity therewith; when the Judgment re- quires the performance of any other act than as above designated, a certified copy of the judgment may be served upon the party against whom the same Is rendered, or upon the person or officer required thereby or by law to obey the same, and obedience thereto may be enforced by the court. En. March 11, 1872. Am'd. 1873-4, 321. Cal. Rep. Cit. 53, 558; 53, 559; 57, 9; 57, 10; 62, 630; 72. 203; 72, 264; 75, 414; 76, 542; 90, 185; 93, 143; 94, 220; 94, 223; 101, 204; 119. 197; 121, 197; 121, 342; 130, 599; 137, 87; 137, 203; 140, 194; 145, 554. Prac. Act, sec. 213. En. April 29. 1851. Am'd. 1866, 703. Cal. Rep. Cit. 30, 371. Money, how computed and stated In: See Pol. Code, sec 3274. Writ of possession or restitution: Ante, seo. 380; post, sec. 1174. Re-entry after dispossession: Post, sec. 1210. Execution against the person, discharge of prisoner: Post, sees. 1143-1154. Sale of property: See post, sees. 694 et seq. Performance of any other act — Enforcing obedience: Post, sees. 1209 et seq. § f85. Execution after five years. In all cases, the Judgment may be enforced or carried Into execution after the lapse of five years from the date of its entry, by leave of the court, upon motion, or by judgment for that purpose, founded upon supplemental pleadings; but nothing in this section shall be construed to revive a judgment for the recovery of money which shall have been barred by limita- 5§ 6E:, CS7 THE EXECUTION. IN tlou at the time of the passage of this act. En. March 11, 1872. Am'd, 1S95, 38. Cal. Rep. Clt. Gl. 147; 81, 203; 81, 204; 86, 278; 86, 385; 121, 29; 1?1. 30; 137, 38; 145. 531; 145. 532. Prac. Act, sec. 214. En. April 29, 1851. Am'd. 1861. 116; 18C6. 704. Cal. Rep. Clt. 8, 513; 17. 271; 22. 650; 29, 229; 37, 13; 37, 14; 37. 15; 37, 135; 37, 146. § 686, When execution may Issue against the property of a party after his death. Notwithstanding the death of a party after the judgment, execution thereon may be Issued, or It may be enforced as follows: 1. In case of the death of the Judgment creditor, upon the application of his executor, or administrator, or suc- cessor In Interest; 2. In case of the death of th6 Judgment debtor. If the judgment be for the recovery of real a personal property, or the enforcement of a lien thereon. En. March 11, 1872. Cal. Rep. Clt. 138, 259. Prac. Act, sec. 215. En. April 29, 1851. Am'd. 1864, 453. Cal. Rep. Clt. 29, 3G8; 37, 14. Death of party — Eflect on action: Ante, sec. 385; Judg- ment after: Ante, sec. 669; execution aiter: Post, seo. 1505. § 687. Execution, how and to whom Issued. Where the execution Is against the property of the judgment debtor, it may be Issued to the sheriff of any county in the state. Where it requires the delivery of real or personal prop- erty. It must be issued to the sheriff of the county where the property, or some part thereof, is situated. Execu- tions may be issued, al the same time, to different coun- ties. En. March 11, 1872. Cal. Rep. Cit. 83. 459. Prac. Act, sec. 216. En. April 29, 1851. Any county in the state, process extends to: Sec. 78. Execution requiring delivery of real and personal prop- erty: Ante, sec. 682, subd. 6. 2C1 THE EXECUTION. 5§ 688, 689 Act concerning execution of final process where new county formed: See post, Appendix, title Process. § 688. What shall be liable to be seized In execution. Not to be affected till a levy is made. All goods, chattels, moneys, and other property, both real and personal, or any interest therein of the judgment debtor, not exempt by law, and all property and rights of property seized and held under attachment in the action, are liable to execu- tion. Shares and interests in any corporation or com- pany, and debts and credits, and all other property, both real and personal, or any interest in either real or per- sonal property, and all other property not capable of manual delivery, may be attached on execution, in like manner as upon writs of attachment. Gold dust must be returned by the officer as so much money collected at its current value, without exposing the same to sale. Until a lew, property is not affected by the execution. En. March 11, 1872. Oal. Rep. Cit. 52, 331; 54, 342; 57, 522; 58, 375; 65, 302; 72, 70; 77, 655; 94, 221; 99, 165; 100, 327; 101, 227; 118, 101; 119, 194; 122, 97; 131, 89; 133, 317; 138, 194; 146, 742. Prac. Act, sec 217. En. April 29, 1851. Am'd. 1854, 62; 1862, 568. Cal. Rep. Cit. 6, 196; 7, 204; 13, 22; 34, 87; 84, 607; 37, 146; 39, 144; 54, 459; 119, 196. Goodwill: Civ. Code, sees. 992, 993. Franchise: Civ. Code, sees. 388-393. Homestead: See Civ. Code, sees. 1241-1261. Sole trad- ers: See post, sees. 1811-182L Levy: Ante, sec. 542. Estates at will not subject to execution: See C3v. Ck>de, sec. 765. Exemptions, generally: Post, sec 690. § 689. When property Is claimed by a third party. In- demnity. If the property levied on be claimed by a third person as his property by a written claim verified by the oath of said claimant, setting out his title thereto, his right to the possession thereof, and stating the grounds of such title, and served upon the sheriff, the sheriff is not bound to keep the property unless the plaintiff, or the person in whose favor the writ of execution runs, on de- mand, indemnify the sheriff against such claim by an 5 690 TIIE EXECUTION. Ml undertaking by at least two good and sufRnient su'-eties; an'J no claim to such property is valid against the sheriff, or shall be received, or be notice of any rights, unless made as above provided. En. March 11, 1872. Am'd. 1891, 20. Cal. Rep. Clt. 58, 438; 97, 48.?; 108. 145; 109, 241; 113, 3C3; 114, 295; 117, 40; 122, 334; 126, 42; 133, 84; 138, 444; 142, 459. Prac. Act, sec. 218. En. April 29, 1851. If the sheriff give notice to sureties of action brought against him, they are liable on the judgment: Post, sec. 1055. § 690. What exempt from execution. The following property is exempt from execution, except as herein other- wise specially provided: 1. Chairs, tables, d'csks, and books, to the value of two hundred dollars, belon-ging to the judgment debtor; 2. Necessary household, table, and kitchen furniture belor^ing to the judg-ment debtor, including one sewing- machine, stove, stove-pipes and furniture, wearing apparel, beds, bedding, and bedsteads, hanging pictures, oil paint- ings and drawings drawn or painted by any member of the family, and family portraits and their necessary frames, provisions and fuel actually provided for individ- ual or family use, sufficient for three months, and three cows and their suckling calves, four hogs with their suck- ling pigs, and food for such cows and hogs for one month; also, one piano, one shotgun, and one rifle; 3. The farming utensils or implements of husbandry of the judgment deptor, not exceeding in value the sum of one thousand dollars; also, two oxen, or two horses, or two mules, and their harness, one cart or buggy and two wagons, and food for such oxen, horses, or mules, for one month; also, all seed, grain, or vegetables actually pro- vided, reserved, or on hand for the purpose of planting or sowing at any time within the ensuing six months, not exceeding in value the sum of two hundred dollars; and seventy-five beehives; one horse and vehicle belon'glng to any person who is maimed or crippled, and the same is necessary in his business; 4. The tools or implements of a mechanic or artisan, necessary to carry on his trade; the notarial seal, records, and office furniture of a notary public; the instruments 268 THE EXKOtrriOM. | 6J0 and chest of a surgeon, physiciajQ, surveyor, ot dentist, nccessai-y to the exercise of tneir profes-sion, with their professional libraries and necessary office furniture; the professional libraries of attorneys, judges, ministers of the gospel, editors, school teachers, and music teachers, and their necessary oifi.ce farniture; including one safe and one typewriter; also the musical instruments of music teachers actually used by them in giving instruc- tions, and all the indexes, abstracts, books, papers, maps and office furniture of a searcher c>I records necessary to be used in his profession; also, the typewriters, or other mtschanical contrivances employed for venting in type, actually used by the owner thereof for making his living; also, one bicycle, when the same is used by its owner for the purpose of carrying on his regular business, or when the same is used for the purpose of transporting the owner to an-d from his place of business; 5. The cabin or dwelling of a miner, not ej:ceeding In value the sum of five hundred dollars; also, his a'.uices, pipes, hose, windlass, derrick, cars, pumps, tools, Imple- ments, and appliances necessary for carrying on any min- ing operations, not exceeding in value the aggregate sum of five hundred dollars; and two horses, mules, or oxen with their harness, and foo-d for such horsea, mules, or oxen for one month, when necessary to be used on any whim, windlass, tlerrick, car pump or hoisting gear; and also his mining claim, actually worked by him, not ex- ceeding in value the sum of one thousand dollars; 6. Two horses, two oxen, or two mules, and their har- ness, and one cart or wagon, one dray or truck, one coupcv one hack, or carriage, for one or two horses, by the use ct which a cartman, drayman, truckman, huckster, peddler, hackman, teamster, or other laborer habitually earns his living; and one horse, with vehicle anfl b.arness or otheic equipments, used by a physician, surgeon, constable, or minister of the gospel, in the legitimate practice of his profession or business; with food for such oxen, horses, or mules for one month; 7. One fishing-boat and net, not exceeding the total Talue of five hundred dollars, the property of any fisher- man, by the lawful use of which he earns his livelihood; 8. Poultry not exceeding In value seventy five dollars; 9. The wages and earnings of all seamen, sea-going fishermen and sealers, not exceeding three hundred dol- g e9« TIIE EXECUTION. «« lars, regardless of where or when earned, and In additioa to all oth'^r exemptions othcrwLse provided by any law; 10. The earnings of the Judgment debtor for his personal services rendered at any time within thirty days next precfAling the levy of exerution or attachjnent, when it appears, by the debtor's affidavit, or otherwise, that such earnings are ncx^essary for the u.se of his family, residing in this dtate, supported In whole or In part by his labor; but where debts are incurred by any such person, or his Vfitb or family, for the common necessaries of life, or have been incurred at a time wlion the debtor had no family, residing in this state, supported in whole or in part by his la./cr, the one-half of such earnings above mentioned is nevertheless subject to execution, garnishment, or attach- natot to satisfy debts so incurred; 11. The shares held by a member of a hoanestead asso- ciation duly incorporated, not exceeding in value one thousand dollars if the person holding the shares is not the owner of a homestead under the laws of this state; 12. All the nautical Instruments and wearing apparel of any master, officer, or seaman of any steamer or other vessel; 13. All fire engines, hooks and ladders, with the carts, trucks and carriages, hose buckets. Implements, and ap- paratus thereunto appertaining, and all furniture and uni- forms of any fire company or department organized under the laws of this state; 14. All arms, uniforms, and accoutrements required by law to be kept by any person, and also one gun, to be selected by the debtor; 15. All court-houses, jails, public offices, and buildings, lots, grounds, and personal property, the fixtures, furniture, books, papers and appurtenances belonging aud pertaining to the jail and public offices belonging to any county of this state; and all cemeteries, public squares, parks, and places, public buildings, town halls, markets, buildings for the use of fire departments and military organizations, and the lots and grounds thereto belonging and apper- taining, owned or held by any town or incorporated city, or dedicated by such town or city to health, ornament, or public use, or for the use of any fire or military company organized under the laws of this state; 265 THE EXECUTION. i 699 16. All material, not exceeding one thousand dollars In value, purchased in good faith for use in the construction, alteration, or repair of any building, mining claim or other improvement, as long as in good faith the same Is about to be applied to the construction, alteration, or repair of such building, mining claim, or other improvement; 17. All machinery, tools and implements, necessary In and for boring, sinking, putting down and constructing surface or artesian wells; also the engines necessary for operating such machinery, implements, tools, etc., also all trucks necessary for the transportation of such machinery, tools, implements, engines, etc.; provided, that the value of all the articles exempted under tils sub- division shall not exceed one thousand dollars; 18. All moneys, benefits, privileges, or Immunities accru- ing or in any manner growing out of any life Insurance, If the annual premiums paid do not exceed five hundred dol- lars, and if they exceed that sum, a like exemption shall exist which shall bear the same proportion to the moneys, benefits, privileges, and immunities so accruing or grow- ing out of such insurance that said five hundred dollars bears to the whole annual premiums paid; 19. Shares of stock in any building and loan association to the value of one thousand dollars. No article, however, or species of property mentioned in this section, is exempt from execution issued upon a judg- ment recovered for its price, or upon a judgment of fore- closure of a mortgage or other lien thereon. En. March 11, 1872. Am'd. 1875-6. 94; 1877-8, 101; 1887, 99; 1897, 180; 1899, 19; 1900-01, 21; 1903, 114. Cal. Rep. Cit 62, 400; 62, 406; 64, 291; 72, 244; 77, 195; 77, 404; 99, 203; 102, 536; 122, 439. Subd. 2.— 140, 623. Subd. 3—65, 507; 67, 400; 71, 77; 119, 42; 121, 538; 122, 436. Subd. 4—87, 293. Subd. 5—98, 479. Subd. 6—54, 640; 64, 290; 72, 244; 83, 196; 91, 276. Subd. 10—75, 249; 142, 195. Subd. 11—123, 40L Subd. 12—121, 354; 122, 97. Subd. 13—90, 546. Subd. 18—145. 778. Prac. Act, sec 219. En. April 29, 1851. Am'd. 1854, 62; 1862, 573; 1864, 523; 1869-70, 384; 1871-2, 864. Cal. Rep. Cit 34, 305; 38. 383; 71, 78, Subd. 3—77, 195. Subd. 6—77, 195. i; 601, C02 THE EXECUTION. WU § 691. Writ, how execute i. Tho shoriff must pxorute tho writ against tho property of the jue«lIngs to C"mpel debtor to aopear. In what cases Kc r.-'-<^s, etc., octlona for. 5 7M. Mo.asuro of damnR.'S In certain cases uniler the last section. 5 735. Damages Is actions for forcible entry, etc., may be trebled. 5 731. Nuisance defined, and actions for. An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuis- ance, as the same Is defined In section thirty-four hundred and seventy-nine of the Civil Code, and by the judgment in such action the nuisance may be enjoined or abated as well as damages recovered therefor. A civil action may be brought in the name of the people of the State of California to abate a public nuisance, as the same is defined in section thirty-four hundred and eighty of the Civil Code, by the district attorney of any county in which such nuisance ex- ists, or by the city attorney of any town or city in which such nuisance exists, and each of said oflicers shall have concurrent right to bring such action for a public nuisance existing within a town or city, and such district attorney, or city attorney, of any county or city in which such nuisance exists must bring such action whenever directed by the board of supervisors of such county or whenever directed by the legislative authoritv of such town or city. En. March 11, 1872. Am'd. 1005, 130. Cal. Rep. Cit. 50, 594; 51, 144: 65, 455; 66, 151; 66, 174; 78. 464; 78, 616; 80, 343; 89, 29; 103, 238; 115, 463; 128. 496; 130, 379; 141, 363; 144, 545; 146, 57. Prac. Act, sec. 249. En. April 29, 1S51. Cal. Rep. Cit. 29, 159; 30, 575; 50, 194; 50, 594. J» ACTIONS FOR NUISANCE, ETC. §§ 732-734 Nuisance — Definition: Compare Civ. Code, sees. 3470, 3480, 3481; also, see Civ. Code, sees. 3482, 3483, 3490; dam- ages: Civ. Code, sec. 3484. Lapse of time cannot leg^allze public: Civ. Code, sec 3490; private action for public nuisance: Idem, sec. 3493. Common-law remedy: Ante, sec. 18. Power of board of bealth to abate In San Francisco: See Pol. Code, sec. 3028. § 732. Waste, actions for. If a guardian, tenant for life or years, joint tenant, or tenant in common of real prop- erty, commit waste thereon, any person aggrieved by the waste may bring an action again.st him therefor, ir which action there may be judgment for treble damages. En. March 11, 1872. Cal. Rep. Cit. 64, 138; 64, 14&; 135, 310; 140. 679; 140, 680; 142, 667, Prac. Act, sec. 250. En. April 29, 1S51. Cal. Rep. CIt 29, 513. Waste: Anta, sec. 74t; enjoining: Ante, sec. 745. § 733. Trespass for cutting or' carrying away trees, etc., actions (-■.'. Any person who cuts down or carries olT any wood or underwood, tree or timber, or girdles or otherwise Inj'Ures 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 cutlvated grounds; or on the com- mons or public grounds of any city or town, or on the street or highway in front thereof, without lawful author- ity, Is liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor, In a civil action, In any court having jurisdiction. En. March 11, 1872. Cal. Rep. Cit. 108, 201; 108, 205; 108, 206; 108, 207; 140, 680. Prac. Act, sec. 251. En. April 29, 1851 Cal. Rep. Cit. 51, 304; 51, 306; 108, 205. Treble damages for Injuries to trees: See Ov. Code, sec. 3346. § 734. Measure of damages In certain cases under the last section. Nothing in the last section authorizes the recovery of more than the just value of the timber taken from uncultivated woodland, for the repair of a pubUc Code CivU Proc-tt. S§ 735, 7M CONFLICTTING CLAIMS. aW highway or bridge upon the land, or adjoining it. En- March 11, 1872. Prac. Act, sec. 252. Ehi. April 29, 1851. Cal. Rep. Cit. 1, 396; 1. 438. § 735. Damages in actions for forcible entry, etc., may be trebled. If a person recover damages for a forrihle or unlawful entry in or upon, or detention of, any building, or any cultivated real property, judgment may he entered for three times the amount at which the actual damages are assessed. En. March 11, 1872. Cal. Rep. Cit. 138, 283. Prac. Act, sec. 253. Eb. April 29, 1851. Forcible entry and unlawful detainer, treble damages: Post, sec. 1174. Treble damages: See Civ. Code, sec. 3345. CHAPTER m. ACTIONS TO DFTFTRMTNE CONFT.ir-rTNO rt^AIMS TO RKAL. PROPERTY. AND OTHER PROVISIO.NS RELATING TO AC- TIONS CONCERNING REAL ESTATE. 5 7S8. Action to qulfrt title; tmst under will; Jnry trial. § 7S9. When plaintiff cannot recover costs. § 740. If plaintiffs title terminates pending: the enlt, what he may recover, and how verdict and Judgment to be. 5 741. When value of Improvements can be allowed as a setofT. § 742. An order may be made to allow a party to survey and meas- ure the land In dispute, § 743. Order, what to contain, and how served. If unnocpssary Injury done, the party surveying to be liable therefor. 5 744. A morti^agre must not be deemed a conveyance, whatever its terms. § 745. When coart may prant Injunction; during foreclosure, after sale on execution, before conveyance. 5 746. Damages may be recovere\i for Injury to the possession after sale and before delivery of possession. (S 74T. Action not to be prejudiced by alienation, pending suit. 5 748. Mining claims, actions concerning to be governed by local rules. is 749. How service may be made In action relating to real property. 5 749. rvetermlnation of adverse claim of unknown owner. 5 ^T^0. Notice to unknown owners, hovr served. S 751. Judgment to be in accordance with evidence. § 738. Action to quiet title; trust under will; Jury trial. An action may be brought by any person against another who claims an estate or interest in real property, adverse to him, for the purpose of determining such adverse claim; provided, however, that whenever in an action to quiet title to, or to determine adverse claims to, real property. 291 CONFUCTING CLAIMS. 55 739, Ki the validity of any gift, devise, or trust, under any will, or instrument purporting to be a will, whether admitted to probate or not, shaii be involved, such will, or instru- ment purporting to be a will, is admissible in evidence; and all questions concerning the validity of any gift, de- vise, or trust therein contained, save such as under the constitution belong exclusively to the probate jurisdiction, shall be finally determined in such action; and provided however, that nothing herein contained shall be con- strued to deprive a party of the right to a jury trial In any case where, by the law, such right is now given. En. March 11, 1872. Am'd. 1895, 73. Cal. Rep. Cit. 52, 433; 53, 19; 53, 398; 53, 654; 56, 247 65, 404; 65, 605; 66, 338; 66, 555; 66, 559; 66, 562 66, 563; 66, 565; 67, 484; 69, 593; 71, 186; 71, 188 73, 96; 73, 552; 74, 497; 74, 498; 74, 499; 75, 123 77, 296; 77, 352; 79, 300; 79, 446; 80, 340; 80, 342 80, 465; 81, 130; 83, 592; 83, 608; 83, 609; 83, 614 84, 467; 86, 361; 86, 557; 86, 564; 86, 582; 87, 53 88. 123; .8, 127; 89, 599; 90, 3; 90, 343; 92, 10 92, 14; 94, 368; 94, 466; 94. 467; 98, 419; 103, 217 108, 676; 109, 59; 111. 600; 116, 500; 117. 61; 120. 516 122, 544; 125. 672; 126, 474; 127, 509; 127, 510; 129, 677 132, 696; 132, 697; 134, 336; 135, 612; 136, 483; 137, 473 138, 156; 147, 5. Prac. Act, sec. 254. En. April 29, i?51. Cal. Rep. Cit. 9, 271; 13, 114; 15. 262; 21. 24S; 21, 510 25, 44; 25, 252; 25. 437; 25, 518; 28, 202; 28, 647 28, 649; 28, 655; 29, 57; 31, 287; 32, 110; 32, 628 34, 371; 34, 559; 34, 565; 35, 34; 36, 314; 36, 321 37, 307; 37. 440; 39, 17; 39, 19; 41, 62; 42, 644 43, 215; 56, 248; 79, 446; 80. 465. Determining claim to personalty: Post, sec 1050. Parties: Ante, sees. 379, 380, 381. § 739. When plaintiff cannot recover costs, tf the defendant in such action disclaim in his answer any In- terest or estate in the property, or suffer Judgment to be taken against him without answer, the plaintiff cannot recover costs. En. March 11, 1872. Cal. Rep. Cit. 79, 447; 83, 598; 83, 609; 126, 148. Prac. Act, sec. 255. En. April 29, 1851. Costs: Post, sees. 1022 et seq. § 740. If plaintiff's title terminates pending the suit, what he may recover, and how verdict and judgment to b«. {§ 741, 142 CONFUCTLNG CLAIMS. TK In an action for the recovery of real property, where the plaintiff shows a right to recover at the time the action was commemced, but it appears that his right has ter- minated during the pendency of the action, the verdict and judgment must be according to the fact, and the plain- tiff may recover damages for withholding the property. En. March 11, 1872. i*rac. Act, sec. l!56. En. April 29, 1851. Cal. Rep. Cit 27, 246; 28, 448; 30, 473; 30, 475; 30, 476; 30, 477. Pendency of action: Post, sec. 1049. 9 741. When value of Improvements can be allowed as a setoff. When damages are claimed for withholding the property recovered, upon which permanent improvements have been made by a defendant, or those under whom he claims, holding under color of title adversely to the claim oi the plaintiff, in good faith, the value of such improve- ments must be allowed as a setoff against such damages. En. March 11, 1872. Cal. Rep. Cit 73, 175; 82, 127; 85, 401; 108, 210. Prac. Act, sec. 257. En. April 29, 1851. Cal. Rep. Cit. 14, 467; 18, 696; 31, 495; 35, 355. Counterclaim. — Unless defendant sets it up, it is waived: Ante, sec. 439. Counterclaim generally: Ante, sec. 438. § 742. An order may be made to allow a party to survey and measure the land in dispute. The court in which an action is pending for the recovery of real property, or for d'i^mages for an injury thereto, or a judge thereof, may, on motion, upon notice by either party, for good cause ffaown, grant an order allowing to such party the right to enter upon the property and make survey and meas- TO-ement thereof, and of any tunnels, shafts, or drifts there- in, for the purpose of the action, even though entry for Buch purpose has to be made through other lands belong- ing to parties to the action. En. March 11, 1872. Am'd. U^O, 11. Prac. Act, sec. 258. En. April 29, 1851. Am'd. 1860, 304. Order for survey where title to land in two counties dis- pTited: See Pol. Code, sec. 4270. 298 CONFLICTING CLAIMS. §§ 7«-74« § 743. Order, what to contain, and how served. If un- necessary injury done, the party surveying to be liable therefor. The order must describe the property, and a copy thereof must be served on the owner or occupant; and thereupon such party may enter upon the property, with necessary surveyors and assistants, and make such survey and measurement; but if any necessary irjury be done to the property, he is liable therefor. En. March 11, 1872. Prac. Act, sec. 259. En. April 29, 1851. !5 744. A mortgage must not be deemed a conveyance, whatever its terms. A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale. En. March 11, 1872. Cal. Rep. Cit. 57, 482; 57, 483; 62, 630; 66, 615; 76, 180; 98, 494; 100, 254; 120, 179. Prac. Act, sec. 260. En. April 29, 1851. Cal. Rep. Cit. 14, 264; 17, 591; 17, 592; 22, 261; 29, 19; 29, 255; 36, 48; 36, 51; 36, 59; 36, 63; 76, 180; 144 32; 144, 33. Conveyance deemed mortgage: Civ. Code, sees. 2924, 2925; proof: Civ. Code, sec 2925; mortgagee's possession: Civ. Code, sec. 2927. § 745. When court may grant Injunction; during fore- closure, after sale on execution, before conveyance. The court may by injunction, on good cause shown, restrain the party in possession from doing any act to the injury of real property during the foreclosure of a mortgage thereon; or, after a sale on execution, before a conveyance. En. March 11, 1872. Prac. Act, sec. 261. En. April 29, 185L Cal. Rep. Cit. 80, 497. Injunction, generally: Ante, sees. 525-533. Receiver: Ante, sec. 564, subd. 2. Waste: Civ. Code, sec. 2929. Foreclosure of mortgage: Ante, sec. 726. Execution sales: Ante, sees. 694 et seq. §746. Damages may he recovered for injury to the pos- sessitm after sale and before delivery of possesion. SS 747-743 CONFLICTING Cl^VlMS. BH When real property has been sold on execution, the pur- chaser thereof, or anj- person who may have succeeded to his interest, miiy, after his estate becomes absohite, recover damages for injury to the property by the tenant In pus- session after sale ?nd before possession is delivered under tho conveyance. En. March 11, 1872. Prac. Act, sec 262. En. April 29, 1851. Lds pendens: Ante, sec. 409. § 747. Action not to be prejudiced by alienation, pend- ing suit. An action for the recovery of real property agninst a person in possession cannot be prejudicetl by any alienation made by such person, either before or after the commencement of the action. En. March 11, 1872. Prac. Act, sec. 263. En, April 29, 1851. Cal. Rep. Cit. 71, 476. § 748. {Mining claims, actions concerning to be governed by local rules. In actions respecting mining claims, proof must be admitted 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 laws of this state, must govern the decision of the action. En. March 11, 1872. Prac. Act, sec. 621. En. April 29, 1851. Cal. Rep. Cit. 5, 100; 26, 272; 26, 533; 31, 393; 69, 383. § 749. How service may be made in action relating to real property. Service may be made by publication in actions relating to or the subject of which is real property In this state, when any defendant has or claims any adverse interest or estate therein, and where the person on whom the service is to be made resides outside of the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of summons, or Is a foreign corporation having no managing or business agent, cashier, or secretary within the state, and the fact appear- ing, by affidavit, to the satisfaction of the court or judge thereof, and it also appearing by such afHdavit or by the verified complaint on file that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the action, such judge may make an order that the service 193 CONFLICTING CLAIMa § 749 be made by publication of summons. Service by pub- lication and proof of service of a copy of the summons and complaint in actions under this title shall be sufficient, if made in accordance with sections four hundred and thirteen and four hundred and fifteen of this code. En. Stats, 1891, 278. This section was not superseded by the next section 749, adopted in 1901 and amended in 1903 under the principle of Ex parte Ruffin, 119 Cal. 487. § 749. Determination of adverse claim of known and unknown owner. An action may be brought to determine the adverse claims to and clouds upon title to real property by a person who, by himself or by himself and his prede- cessors in interest, has been In the actual, exclusive and adverse possession ot such property continuously for twenty years prior to the filing of the complaint, claiming to own the same In fee against the whole world, and who has paid all taxes of every kind levied or assessed against the property during the period of five years continuously next preceding the filing of the complaint. Said action shall be commenced by the filing of a verified complaint averring the matters above enumerated. The said complaint may include as defendants in such action. In addition to such persons as appear of record to have, all other persons who are known to the plaintiff to have, some claim or cloud on the lands described in the complaint adverse to plaintiff's ownership, or other persons unknown claiming any right, interest or lien in such lands, or cloud upon the title of plaintiff thereto, and the plaintiff may describe such un- known defendants in the complaint as follows: "also all other persons unknown, claiming any right, title, estate, lien or interest in the real property described in the com- plaint adverse to plaintiff's ownership, or any cloud upon plaintiff's title thereto." Within ten days after the filing of the complaint, plaintiff shall file, or cause to be filed, in the office of the county recorder of the county where the property is situated, a notice of the pendency of the action, containing the matters required by section four hundred and nine of this code. En. Stats. 1900-01, 579. Am'd. 1903, 104. Cal. Rep. Cit. 115, 276. See sea 412, anta § 730 CONFLICTING CLAIMS. XM § 750. Notice to unknown owners, how served. Within oiiG year after the filing of the complaint, as required by the preceding section, a summons must be issued, which shall contain the matters required by section four hundred and seven of this code, and in addition a description of the property and a statement of the object of the action. In said summons the said unknown defendants shall be desig- nated as in the complaint. Within thirty days after the issuance of the summons, the plaintiff shall post or cause to be posted a copy thereof in a conspicuous place on the property. All defendants residing in the state of Califor- nia, whose place of residence is known to the plaintiff shall be served personally. After service on all such defendants has been made, the plaintiff, or his agent, or attorney, shall make and file an affidavit wherein there shall be stated the names of the defendants who have been served personally, the names of the defendants who reside out of the state and their places of residence, if known to the plaintiff, and the names of the defendants residing in or out of the state whose place of residence is unknown to the plaintiff, and thereupon the court or a judge thereof shall make an order directing the said summons to be served upon the defendants residing out of the state, whose place of residence is known to the plaintiff and upon the defendants residing in or out of the state, whose place of residence Is unknown to the plantiff, and upon all the unknown defendants as stated in the complaint and sum- mons, by publication in some newspaper of general circu- lation printed and published in the county where the property is situated, and if there be no such paper in such county, then in some adjoining county, to be designated by the court or judge thereof, which publication shall be for once a week for two successive months. A copy of the summons and complaint, within ten days after the making of said order, properly addressed and with the postage thereon fully prepaid, shall be mailed to each of the defendants who reside out of the state, at their place of residence, if known, and also to the defendants residing In or out of the state whose place of residence is unknown to plaintiff, addressed to them at the county seat of the county where the action is commenced. All such unknown persons so served shall have the same rights as are pro- vided by law in cases of all other defendants named, upon whom service Is made by publication, or personally, and the action shall proceed against such unknown persons in the same manner as against the defendants who are named 297 CONFLICTING CX,AIM3. 9 ^'l upon whom service is made by publication or personally and with like effect; and any such unknown person who has or claims to have any right, title, estate, lien or inter- est in the said property, or cloud on the title thereto, adverse to plaintiff, at the time of the commencement of the action, who has been duly served as aforesaid, and anyone claiming under him, shall be concluded by thfl judgment in such action as effectually as if the action was brought against the said person by his or her name and personal service of process was obtained, notwithstanding any such unknown person may be under legal disability. Service shall be deemed complete upon the completion of the publication. En. Stats. 1900-01, 579. Am'd. 1903. 104. § 751. Judgment to be In accordance with evidence. WTien the summons has been served as provided in the preceding section and the time for answering has expired, the court shE.ll proceed to hear the case as In other cases and shall have Jurisdiction to examine Into and determine the legality of plaintiff's title and of the title and claim of all the defendants and of all unknown persons, and to that end must not enter any Judgment by default, but must In all cases require evidence of plaintiff's title and pos- session and hear su<;h evidence as may be offered respect- ing the claims and title of any of the dsfendants and must thereafter direct Judgment to be entered in accordance with the evidence and the law. The court before proceed- ing to hear the case must require proof to be made that the summons has been served and posted aia hereinbefore directed and that the required notice of pendency of action has been filed. The Judgment after it has become final Is conclusive against all the persons named In the summons and complaint who have been served and against all un- known persons as stated In the complaint and summons who have been served by publication, but shall not be conclusive against the state of California or the United States. Said Judgment shall have the effect of a Judgment in rem except as against the state of California and the United States; and provided further, that the said Judg- ment shall not bind or be conclusive against any person claiming any estate, title, right, possession or lien to the property under the plaintiff or his predecessors In Interest, which claim, Hen, estate or right ol possession has arisen or been created by the plaintiff or his predecessors in interest within twenty years prior to the filing of the com- PARTITION or RKAL rUOfi:ilTT. t9» plaint. The remedy provirled in this and the tvo preceding sections shall te construed as cumulative and not ex- clusive of any other remedy, form or right of r.ction or proceeding now allowed by law. En. Stats. 1900-01. 579. Ani'd. 1903, 106. r>eorops affecting realty to be recorded: See Pol. Code, sec. 4238. CH/PTER IV. ACTIONS FOR THE PARTITION OF REAL, PROPERTY. !752. Who may bring actions for partition. 763. Intorcsva of all parties must be set forth In tho complaint. 7r>4. Llenholders not of record need r.ot be made parties. 7ri3. Plaintiff must flle notice of lis pendens. g 756. Summons must be directed to all persona tntcicsted in the prop- erty. § 757. Unknown rartlei may be served by publlcntlon. § 758. Answer of defendants, vhat to contain. g 759. The rights of all r*' ties may be ascertained In the action. { 760. Partial paitltlcn. S 761. Llenholders muct be made parties, or a referee be appointed to ascertEln their rljTiti. g 782. Llenholders must bs notified to appear before the referee ap- pointed. g 763. The court may order a sale or partition, an\i a:ipolnt referees therefor g 764. Partition must be made according to the rights of the parties, as determined by the court. J 765. Referees must make a report of their proceedings. 766. The court may set aside or affirm report, and enter Judgment thereon. Upon whom Judgment to be conclusive. g 767. Judgment not to affect tenants for years to the whole prop- erty. 5 768. Expenses of partition must be apportioned among the parties. g 769. A lien on on undivided Interest of any party Is a charge only on the share asslgnevi to such party. g 770. Estate for life or years may be set off In a part of the prop- erty not sold, when not all sold. § 771. Application of proceeds of sale of encumbered property. g 772. Party holding other securities may be required first to ex- haust them. g 773. Proceeds of sale, disposition of. g 774. When paid Into court, the cause may be continued for the determination of the claims of the parties. g 775. Sales by referees must be at public auction. 8 770. The court must direct the terms of sale or credit. g 777. Referees may take securities for purchase money. § 77S. Tenants whose estate has been sold shall receive compensation. g 779. The court may fix such compensation. g 7S0. The court must protect tenants unknown. 299 PARTITION OP REAL PROPERTY. J 752 § 781. The court must ascertain a.n\i secure the value of future con- tingent or vested Interests. J 782. Terms of sale must be made known at the time. Lots must be sold spparately. 8 783. Who may not be purchasers. 5 7K4. Referee must make a report of the sale to the court. § 785. If confirmed, conveyances may be executed. § 786. Proceeding if a lUnholder become a purchaser. 5 787. Conveyance must be recorded, and will be a bar against partl«is. j 788. Proceeds of sale belonging to parties unknown must be In- vested for their benefits § 789. Investment must be made in the name of the clerk of the county. § 700. When the Interests of the parties are ascertained, securities must be taken In their names. g 791. Duties of the cleik making Investments. § 792. When unequal partition Is ordered, compensation may be ad- judged In certain cases. § 7f»3. The share of an Infant may be paid to hie g^iardlan. § 7S4. The guardian of an Insane person may receive the proceeds ol such party's Interest. { 795. A guardian may consent to partition without action, and exe- cute releases. 5 7D6. Costs of partition a Men upon shares of parceners. J 797. The court, by consent, may appoint a single refereee. 5 7S8. Expenses of previous litigation for common benrflt allowed. 5 7;i9. Abstract of title in action for partition— When cost of allowed. 5 SCO. Abstract, how made and verified. § 801. Interest allowed on disbursements made und'sr direction of the court. GfeTi. Cit. to Chap.— Cal. Rep. Clt. 64, 829; 91, 410. § 752. Who may bring actions for partition. When several cotenants hold anrl are in possesyiou of real prop- erty as parceners, joint tenants, or tenants in common, in which one or more of them have an estate of inheritance, or for life or lives, or for years, an action may be brought by one or more of such persons for a partition thereof according to the respective rights of the persons interested therein, and for a sale of such property, or a part thereof, if it appear that a partition cannot be made without great prejudice to the owners. En. March 11, 1872. Cal. Rep. Cit. 53, 25; 58, 592; 64, 614; 65, 47; 84, 418; 86, 526; 86, 530; 106, 686; 126, 483; 141, 385; 144, 29; 145, 164. Prac. Act, sec. 264. En. April 29, 1851. Am'd. 1854, 63; 1866, 704. Cal. Rep. Cit. 26, 78; 27, 331; 35, 586. Partition of dominant tenements, easements: Civ. Code, sec. 807. Intervention: Ante, sec. 387. S§ 753-755 PARTITION OF REAL TROPERTY. 100 § 753. Interests of all parties must be set forth In th© complaint. The Interests of. all persons In the property, whether such persons be known or unknown, must be set forth In the complaint specifically and particularly, as far as known to the plaintiff; and if one or more of the parties, or the share or quantity of interest of any of the parties, be unknown to the plaintiff, or be uncertain or contingent, Or the ownership of the Inheritance depend upon an execu- tory devise, or the remainder be a contingent remainder. BO th:t such parties cannot be named, that fact must be Bet forth In the complaint. En. March 11, 1872. Oal. Rep. Clt. 48, 394; 64, 614; 130, 501; 137, 426; 139. 172; 144, 29. Prac. Act, sec. 265. En. April 29, 1851. Cal. Rep. Clt. 27, 331; 27, 336; 32, 294; 82, 295. Complaint In partition — Complaint generally: Ante, sec. 426; parties: Post, sec. 754; ante, sees. 384, 387, Unknown persons, use of fictitious names: Ante, sec. 474; and as to summons: Post, sec. 756. Abstract of title — Procured before suit: Post, sec. 799. § 754. Llenholders not of record need not be made parties. No person having a conveyance of or claiming a lien on the property, or some part of it, need be made a party to the action unless such conveyance or Hen appear of record. Eji. March 11, 1872. Cal. Rep. Clt. 53, 39. Prac. Act, sec. 266. En. April 29, 1851. Am'd. 1866, 704. g 755. Plaintiff must file notice of lis pendens. Imme- diately after filing the complaint in the superior court, the plaintiff must record In the office of the recorder of the county or of the several counties in which the property is situated, a notice of the pendency of the action, containing the names of the parties so far as known, the object of the action, and a description of the property to be affected thereby. From the time of filing such notice for record, all persons shall be deemed to have notice of the pendency of the action. En. March 11, 1872. > Am'd. 1873-4. 825; 1880, 11. Cal. Rep. Clt. 106, 688. Prac. Act, sec. 267. En. April 29, 1851. Am'd. 1866, 705. Lis pendens: Sec. 409. Wl PARTITION OF REAL PROPERTY. §§ 756-758 § 756. Summons must be directed to all persons inter- ested in the property. The summmons must be directed to all the joint tenants and tenants in common, and all persons having any interest m, or any liens of record by mortgage, judgment, or otherwise, upon the property, or upon any particular portion thereof; and generally, to all persons unknown who have or claim any interest in the property. En. March 11, 1872. Cal. Rep. Cit. 53, 371; 58, 594. Prac. Act, sec. 268. En. April 29, 1851. Cal. Rep. Cit. 35, 592. Summons In partition, generally: Ante, sees. 405-416; and as to contents: See ante, sec. 407. 8 757. Unknown parties may be served by publication. If a partion having a share or interest is unknown, or any one of the known parties reside out of the state, or cannot be found therein, and such fact is made to appear by affi- davit, the summons may be served on such absent or unknown party by publication, as in other cases. When pr.blication is made, the summons, as published, must be accompanied by a brief description cif the property which is the subject of the action. En. March 11, 1872. Prac. Act, sec. 269. En. April 29, 1851. Service by publication: Ante, sees. 412, 413. § 758. Answer of defendants, what to contain. The defendants who have been personally served with the summons and a copy of the complaint, or who have ap- peared without such service, must set forth in their answers, fully and particularly, the origin, nature, and extent of their respective interests in the property; and if such defendants claim a lien on the property by mort- gage, judgment, or otherwise, they must state the original amount and date of the same, and the sum remaining due thereon; also whether the same has been secured in any other way or not; and, if secured, the nature and extent of such security, or they are deemed to have waived their right to such lien. En. March 11, 1872. Cal. Rep. Cit. 53, 371; 58, 595; 117, 675; 144, 761. J 5 "J-'X ■?" rAIlTITION OP KKAL PROPRRTT. *» Prar. Art, see. 270. En. April 29, 1851. Am'd. 1SC6, 705. Cal. Rep. Cit. 1, 199; 32, 295. Answer In partition — Pleading disbursements: Post, sec. 798; answer geiieially: Ante, sec. 437. Notice, as to abstract of title: Post, sec. 799. § 759. The rights of all parties may be ascertained in the action. The rights of the several parties, plaintiff as well as defendant, may be put in issue, tried, and deter- mined in such action; and when a sale of the premises is necessary, the title must be ascertained by proof to the satisfaction of the court, before the judgment of sale can be made; and where service of the complaint has been made by publication, like proof must be required of the right of tho absent or unknown parties, before such judgment is rendered; except that where there are several unknown persons having an interest in the property, their rights may be con.=^idered together in the action, and not as between themselves. En. March 11, 1872. Cal. Rep. Clt. 58, 593; 64, 609; 64, 612; 64, 614; 64, 618; 64, 629; 116, 433; 144, 29; 144, 761. Prac. Act, sec. 271. En. April 29, 1851. Cal. Rep. Cit. 1, 183; 2, 161; 27, 335; 32, 294; 58, 593. Final judgment: Post, sec. 766. Parties: Ante, sees. 381, 384; post, sec. 761. Intervention: Ante, sec. 387. § 760- Partial partition. Whenever from any cause It Is, in the opinion of the court, impracticable or highly in- convenient to make a complete partition, in the first instance, among all the parties in interest, the court may first ascertain and determine the shares or interest re- spectively held by the original cotenants, and thereupon aojudge and cause a partition to be made, as if such original cotenants were the parties and sole parties in Interest, and the only parties to the action, and thereafter may proceed in like manner to adjudge and make partition separately of each share or portion so ascertained and allotted, as between those claiming under the original tenant to whom the same shall have beon so set apart, or may allow them to remain tenants in common thereof, as they may desire. En. March 11, 1872. Cal. Rep. Cit. 64, 609; 64, 610; 64, 612; 64, 627; 64, 630; 64, 631; 64, 632; 80, 497; 90, 482. 805 PARTITION OF REAL PROPERTY. $§ 7hl. 7S2 Prac. Act, sec. 272. En. April 29, 185L B«p. 1852, 88. En. 1866, ?05. Cal. R2p. Cit. 1, 182; 36, 115. § 761. Lienholders must be made parties, or a rcVbfve be appointed to ascertain their rights. If it appears to the court, by the certificate of the county recor'^er or county clerk, or by the sworn or verified statement of any person who may have examined or searched the records, that there are outstanding liens or encumbrances of record upon such real property, or any part or portion thereof, which existed and were of record at the time of the cora- mencement of the action, and the persons holding such liens are not made parties to the action, the court must either order such persons to be made parties to the action, by an amendment or supplemental complaint, or appoint a referee to ascertain whether or not such lien or encuT.^- brances have been paid, or if not paid, what amount remains due thereon, and their order among the liens ur encumbrances severally held by such persons and the parties to the action, and whether the amount remaiuiug due thereon has been secured in any manner, and If se- cured, the nature and extent of the security. En. March 11, 1872. Cal. Rep. Cit. 64, 612; 79, 443; 80, 500. Prac. Act, sec. 273. En. April 29, 1851. Am'd. 1862, 88. Cal. Rep. Cit. 80, 497. § 762. Lienholders must be notified to appear before the referee appointed. The plaintiff must cause a notice to be served, a reasonable time previous to the day for appear- ance before the referee appointed as provided in the last section, on each person having outstanding liens of record, who is not a party to the action, to appear before the referee at a specified time and place, to make proof, by his own afiadavit or otherwise, of the amount due or to become due contingently or absolutely thereon. In case such person be absent, or his residence be unknown, service may be made by publication, or notice to his agents, under the direction of the court, in such manner as may be proper. The report of the referee thereon must be made to the court, and must be confirmed, modified, or set aside, and a new reference ordered, as the justice of the case may require. En. March 11, 1872. 5 763 PAKTITION OF UKM, l-KorKlM'Y. Cal. Rep. Clt. 64, 612; 80, 500. Prac. Act. sec. 274. En. April 29, 1851. § 763. The court nriay order a sale or partition, attd appoint referees therefor. If it be alleged In the com- plaint and established by evidence, or if It appear by the evidence without such allegation In the complaint to ihe satisfaction of the court, that the property or any part of it is so situated that partition cannot be made without great prejudice to the owners, the court may order a sale theracf, otheiwise, upon the requisite proofs being made, it must ordtr a partition aocc»ding to the respective rights of the parties as ascertainad by the court, and ap- point three referees therefor, and must desigo^o-te the jK>r- tlon to rema'n undivided for the owners whose interests ren-Qin unknown, or are not ascertained; provided, that Vihid the site of an incorporate city or town is included within the exterior boundaries of the property to be par- tltio'Jicd, then, on said fact being established by evidence, the following proceedings shall be had. The court s>»all thereupon direct the referees to survey and appraise tha entire property to be partitioned by actual lots and sub- divisions then existing in the actual possession of the sev- eral tenants in common, exclusive of the value of im- provements thereon, first setting apart necessary portions of the property for ways, roads, and streets, as jn sec- tion seven hundred and sixty-four of this code provided, and to report sucli survey and separate appraisement on each lot and subdivision to the court. The court may confirm, change, modify, or set aside the report in whole or in part, and if necessary appoint new referees. When, after the final confirmation of the report of such survey and appraisement, it shall appear by evidence to the satis- faction of the court that an equitable partition of the whole property is impracticable, and a sale of the site of such city or town, or any portion thereof, will be for the best interests of the owners of the whole property, it shall order a sale thereof; provided, that within sixty days thereafter any tenant in common, or tenants in com- mon, having improvements erected on any town or city lot or subdivision included in such order of sale, shall have the prior right to purchase the same at such appraised valuation, and may pay into court the amount so ap- praised as the value thereof, and upon such payment the 505 PARTITION OF REAL PROPERTY. i ^''^ title shall vest in ^^^^^ ^^^''"^^'Z.^/Sa^Zl^eTl ■ the court shall cause to be executed by said reterees a ?etd for such lot or subdivision in fee and m severalty to such purchaser or purchasers, such further proceedings Shan then be had as to the remainder of the property, and Se monev so paid to the court, as by this chapter provid- ed ^f during the pendency of the action, any of the narties die o? become insane or otherwise incompetent S=S:rHSS)£pSM 1872 Am'd. 1880, CO. -•.!,^%?.'.o?; If;.^t T.^ ^'-^' -^-; 130. 182; 137, 56. Prac. Act, sec. 275. En. April 29, 1851. •Sale, proceedings on: Post, sees. 770-795. Partition of the dominant tenement, burden must be apportioned: Civ. Code, sec. 807. Referees: Post, sec. 797. Modifying decree: Post. sec. 766. R 7fi4 Partition must be made according to the rights of the part^e as determined by the court. In niakmg par- minn the referees must divide the property, and a lot the several portSns thereof to the respective parties the several P"'^ relativelv considered, according to ?he rJsDectlve^righ s^of the parties as determined by the pn?.rt rfursulnt to the provisions of this chapter, designat- ing the sevSllportioL by proper landmarks, and may Code Civil Proc— 20. I T64 PARTITTON OF REAL PROPETRTT. 9» employ a surveyor with the necessary assistants to lid them. Before making partition or sale, the referees may, whenever it will be for the advantage of those interested, set apart a portion of the property for a way, road, or street, and the portion so set apart shall not be assigaed to any of the parties or a Id, but shall remain an open and public way, road, or street, unless the referees shall set the same apart as a private way for the use of the parties interested, or some of them, their heirs and as- signs, in which case it shall remain such private way. Whenever the referees have laid out on any tract of land roads sufficient in the judgment of said referees to ac- commodate the public and private wants, they shall re- port that fact to the court, and upon the confirmation of their report all other roads on said tract shall cease to be public highways. Whenever it shall appear, in an ac- tion for partition of lands, that one or more of the ten-, ants in commmon, being the owner of an undivided in- terest in the tract of land sought to be partitioned, has sold to another person a specific tract by metes and bounds out of the common land, and executed to the pur- chaser a deed of conveyance, purporting to convey the whole title to such specific tract to the purchaser in fee and in severalty, the land described in such deed shall be allotted and set apart in partition to such purchaser, his heirs or assigns; or in such other manner as shall make such deed effectual as a conveyance of the whole title to such segregated parcel, it such tract or tracts of land can be so allotted or set apart without material injury of the rights and interests of the other cotenants who may not have joined in such conveyance; provided, that in all cases the court shall direct the referees, in making partition of land, to allot the share of each of the parties owning an interest in the whole or in any part of the premises sought to be partitioned, and to lo- cate the share of each cotenant, so as to embrace as far as practicable the improvements made by such coten- ant upon the property; and the value of the improvements made by the tenants in common must be excluded from the valuation in making allotments, and the land must be valued without regard to such Improvement, in case the same can be done without material injury to the rights and interest to [ofl the other tenants in common owning such land. En. March 11, 1872. Am'd. 1873-4, 325; 1S7&«, 96. 30? PARTITION OF REAL PROPERTY. §§ 765, 7G6 Cal. Rep. Cit. 64, 609; 64, 614; 64, 618; 65, 48; 80, 501; 84, 5; 90, 453; 90, 454; 90, 455; 90, 456; 90, 460; 90, 468; 90, 476; 101, 530; 108, 270. Prac. Act, sec. 276. En. April 29, 1851. Am'd. 1866, 705. § 765. Referees must make a report of their proceed- ings. The referees must make a report of their proceed- ings, specifying therein the manner in which they exe- cuted their trust, and describing the property divided, and the shares allotted to each party, with a particular de- scription of each share. En. March 11, 1872. Cal. Rep. CIt. 64, 615; 64, 629; 90, 455; 97, 27. Prac. Act, sec. 277. En. April 29, 1851. Cal. Rep. Cit. 1, 333; 1, 334. § 766. The court may set aside or affirm report, and enter judgment thereon. Upon whom judgment to be con- clusive. The court may confirm, change, modify, or set aside the report, and if necessary, appoint new referees. Upon the report being confirmed, judgment must be ren- dered that such partition be effectual forever, which judg- ment is binding and conclusive: 1. On all persons named as parties to the action, and their legal representatives, who have at the time any interest in the property divided, or any part thereof, as owners in fee or as tenants for life or for years, or as entitled to the reversion, remainder, or the inheritance" of such property, or any part thereof, after the determination of a particular estate therein, and who by any contingency may be entitled to a beneficial interest in the property, or who have an interest in any undivided share thereof, as tenants for years or for life. 2. On all persons interested in the property, who may be unknown to whom notice has been given of the action for partition by publication: 3. On all other persons claiming from such parties or persons, or either of them And no judgment is invalidated by reason of the death of any party before final judgment or decree; but such judgment or decree Is as conclusive against the heirs, legal, representatives, or assigns of such decedent, as if it had been entered before his death. En. March 11, 1872. Cal. Rep. Clt. 58, 163; 64, 615; 80, 501; 84, 514; 97, 27; 137, 59. Subd. 1—144, 761. 88 707-7C9 PARTITION OF REAL PROPERTT. KN Prac. Act, sec. 278. En. April 29, 1851. Am'd. 18G6, 705, 1867-8, 629. Cal. Rep. Cit. 32, 296; 35, 592. Decrees partitioning realty to be recorded: See Pol. Code, sec. 4238. Record of decree as notice: See Pol, Code, sec. 4239. § 767. Judgment not to affect tenants for years to the whole property. The judgment does not afft'ct tenants for years less than ten, to the whole of the property which is the subject of the partition. En. March 11, 1872. Prac. Act, sec. 279. En. April 29, 1851. Cal. Rep. Cit. 1, 97; 1, 177. § 768. Expenses of partition must be apportioned among the parties. The expenses of the referees, including those of a surveyor and his assistants, when employed, must be ascertained and allowed by the court, and the amount thereof, together with the fees allowed by the court, in its discretion, to the referees, must be apportioned among the different parties to the action, equitably. En. March 11, 1872. Cal. Rep. Cit. 140, 404; 140, 405. Prac. Act, sec. 280. En. April 29, 1851. Am'd. 186C, 706; 1871-2, 230. Cal. Rep. Cit. 1, 194; 81, 467; 140, 404; 140, 405. Section 280 of the old Practice Act, which came to be section 768 of the Code of Civil Procedure, was amended during the session of 1871-72, and amendments of that session superseded the codes, as follows: The expenses of the referees, including those of a sur- veyor ana his assistant when employed, shall be ascer- tained and allowed by the court, and the amount thereof, together with the fees allowed by law to the referees, and such attorney's fees expended for the common benefit, both for plainti^ and defendants, as the court shall deem Just and propar, shall be apportioned among the different parties to the action. Fees of referees: See sec. 1028. § 769. A lien on an undivided interest of any party Is a charge only on the share assigned to such party. When a lien is on an undivided interest or estate of any of the 309 PARTITION OF REAL PROPERTY. 5§ 770, 772 parties, such lien, If a partition be made, shall thence- forth be a charge only on the share assigned to such party; but such share must first be charged with its just proportion of the costs of the partition, in preference to such lien. En. March 11, 1872. Prac. Act, sec. 281. En. A^rll 29, 1851. § 770. Estate for life or years may be set off In a part of the property not sold, when not all sold. When a part of the property only Is ordered to be sold, if there be an es- tate for life or years, in an undlvltled share of the whole property, such estate may be set off in any part of the property not ordered to be sold. En. March 11, 1872. Cal. Rep. Clt. 103, 454. Prac. Act, sec. 282. En. April 29, 1851. § 771. Application of proceeds of sale of encumbered property. The proceeds of the sale of encumbered prop- erty must be applied under the direction of the court, as follows: 1. To pay its just proportion of the general costs of the action; 2. To pay the costs of the reference; 3. To satisfy and cancel of record the several Hens in their order of priority, by payment of the sums due and to become due; the amount due to be verified by affidavit at the time of payment; 4. The residue among the owners of the property soM, according to their respective shares therein. En. March 11, 1872. Prac. Act, sec. 283. En. April 29, 1851. § 772. Party holding other securities may be required first to exhaust them. Whenever any party to an action who holds a lien upon the property, or any part thereof, has other securities for the payment of the amount of such lien, the court may, in its discretion, order such securltie3 to be exhausted before a distribution of the proceeds of sale, or may order a just deduction to be made from the amount of the Hen on the property, on account thereof. En. March 11, 1872. Prac. Act, sec. 284. En. April 29, 1851. §§ 773-776 PARTITIOK OF RKAL PROPRRTY. 09 § 773. Proceeds of sale, disposition of. The procced.s of sale and the securities taken by the referees, or any part thereof, must be distrihiitey a single action. § 809. If defendant found g^ulity, what judgment to be rendered against him. S 810. Undertaking when action brought upon information of pri- vate party. Gen. Cit, to Chap. — Cal. Rep. Cit. 85, 242. § 802. Certain writs abolished. The writ of scire facias is abolished. En. March 11, 1872. Am'd. 18S0, 11. Cal. Rep. Cit. 73, 493; 77, 372; 77, 376; 79, 106; 84. 120; 84, 265; 84, 380; 108, 436; 129, 326; 129, 327. Corporations, dissolution of. — By the Civil Code, sees. 39, 400, it is declared that the dissolution of corporations is provided for, if involuntary, by this chapter of this code; if voluntary, by part 3, title 6, sees. 1227-1233 of this code. Receivers upon dissolution of corporation: Ante, sec. 565. § 803. Action may be brought against any party usurp- ing, etc., any office or franchise. An action may be brought by the attorney general, in the name of the people of this state, upon his own information, or upon the com- plaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public ofiBce, civil or military, or any franchise within this state. And the attorney general must bring the action, whenever he has reason to believe that any such office or franchise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed to do so by the governor. En. March 11, 1872. Cal. Rep Cit 54, 321; 55, 616; 66, 288; 69, 463; 73, 491; 76, 437,' 77, 372; 82, 243; 84, 120; 84, 376; 92, 614; 9S 804, 805 TJSURPATION OF OFFICE, ETC. WO 96, 606; 100, 541; 101, 148; 114, 474; 115, 284; 116, 109; 117, 614; 117, 615; 117, 616; 123, 146; 125, 529; 127, 349; 127, 571; 128, 259; 129, 546; 132, 190; 145, 760. Prac. Act, sec. 310. En. April 29, 1851. Cal. Rep. Cit. 24, 127. Complaint: Post, sec. 804; security by relator: Post, sec. 810. Franchise — Civ. Code, sec. 358. Dissolution of corporations: Civ. Code, sees. 399, 400. Quo warranto, what court may issue: Ante, sec. 76, Bubd. 0. Office, title to — Contesting elections: Post, sees. 1111- 1127. Mandamus to compel admission to office: Post, sec. 1085. § 804. Name of person entitled to office may be set forth in tile complaint. If fees have been received by the usurper, he may be arrested. Whenever such action is brought, the attorney general, in addition to the state- ment of the cause of action, may also set forth in the com- plaint the name of the person rightly entitled to the office, with a statement of his right thereto; and in such case upon proof by affidavit that the defendant has receivc'd fees or emoluments belonging to the office, and by means of his usurpation thereof, an order may be granted by a Justice of the suprem^e court, or a judge of the superior court, for the arrest of such defendant and holding him to bail; and thereupon he may be arrested and held to bail in the same manner, and with the same effect, and subject to the same rights and liabilities, as in other civil actions where the defendant is subject to arrest. En. March 11, 1872. Am'd. 1880, 11, 12. Prac. Act, sec. 311. En. April 29, 1851. Action — Where several claimants: Post, sec. 808. Ar- rest and bail: Sees. 478 et seq. § 805. Judgment may determine the rights of both In- cumbent and claimant. In every such action, judgment may be rendered upon the right of the defendant, and also upon the right of the party so alleged to be entitled, or only upon the right of the defendant, as justice may require. En. March 11, 1872. Cal. Rep. Cit. 69, 464; 73, 491; 118, 400; 132, 283. 821 USURPATION OF OFFICE, ETC. 55 SO(i-SOS Prac. Act, sec. 312. En. April 29, 1851. Cal. Kep. Cit. 27, 475. Judgment: Post, sec. 809. § 806. When rendered in favor of applicant. If the judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he will be entitled, after taking the oath of office, and executing such official bond as may be required by law, to take upon himself the execution of the office. En. March 11, 1872. Cal. Rep. CJt. 115, 283; 138, 39. Prac. Act, sec. 313. En. April 29, 1851. § 807. Damages may be recovered by successful appfl- cant. If judgment be rendered upon the right of the per- son so alleged to be entitled, in favor of such person, he may recover, by action, the damages which he may have sustainea by reason of the usurpation of the office by the defendant. En. March 11, 1872. Oal. Rep. Cit. 118, 397; 118, 400. Prac. Act, sec. 814. En. April 29, 1851. Costs and fine: Post, sec. 809. § 808. When several persons claim the same office, their rights may be determined by a single action. When sev- eral persons claim to be entitled to the same office or franchise, one action may be brought against all such per- sons, in order to try their respective rights to such office' or franchise. En. March 11, 1872. Cal. Rep. Cit. 124, 13. Prac. Act, sec. 315. En. April 29, 1851. § 809. If defendant found guilty, what judgment to be rendered against him. When a defendant, against whom such action has been brought, is adjudged guilty of usurp- ing or intruding into, or unlawfully holding any office, franchise, or privilege, judgment must be rendered that such defendant be excluded from the office, franchise, or privilege, and that he pay the costs of the action. The court may also, in its discretion, impose upon the defend- ant a fine not exceeding five thousand dollars, which fine, Code Civil Proc.— 21. 5§ 810, 813 ACTIONS AGAINST STEAMERS, ETC. 323 when collected, must be paid into the treasury of tho state. En. March 11, 1872. Cal. Rep. Cit. 79, 109; 82, 243; 84, 120; 84, 376; 84, 380; 114, 479; 118, 400; 129, 546; 129, 547; 129. 548. Prac. Act, sec. 316. En. April 29, 1851. § 810. Undertaking when action brought upon informa- tion of private party. When the action is brouslit upon the information or application of a private party, the attorney general may require such party to enter into an undertaking, with sureties to be' approved by the attorney general, conditioned that such party or the sureties will pay any judgment for costs or damages recovered against the plaintiff, and all the costs and expenses incurred iu the prosecution of the action. En. Stats. 1873-4, 326. Cal. Rep. Cit. 69, 221; 69, 463; 75, 148; 76, 437; 79, 106; 84, 365; 108, 436; 108, 736; 129, 326; 129, 327. CHAPTER VI. OF ACTIONS AGAINST STEAMERS, VESSELS. AND BOATS. § 813. When vessels, etc., are liable. Their liabilities constitute lien*. I SU. Actions, how brought. § S15. Complaint must be verified. § 816. Summons, service of. § 817. Plaintiff may have such vessel, etc., attached. § 818. The clerk must issue the writ of attachment. § 819. Such writ must be directed to the sheriff. § 820. Writ, execution of. § 821. The owner, master, etc., may appear and defend such vessel. § 822. Discharge of attachment. •| 823. After appearance, attachment may, on motion, be discharged. 8 824. When not discharged such vessel, etc., may be sold at pub- lic auction. Application of proceeds. § 825. Mariners and others may assert their claim for wages, not- withstanding prior attachment. § 82S. Proof of the claims of mariners and others. § 827. Sheriff's notice of sale to contain measarement, tonnage, etc. § 813. When vessels, etc., are liable. Their liabilities constitute liens. All steamers, vessels, and boats are liable: 1. For services rendered on board at the request of, or on contract with, their respective owners, masters, agents, or consignees. 2. For supplies furnished in this state for their use, at 323 ACTIONS AGAINST STEAMERS, ETC. § 814 the request of their resi>ective owners, masters, agents, or consignees. 3. For work done or materials furnished in this state for their construction, repair, or equipment. 4. For their wharfage and anchorage within this state. 5. For nonperformance, or malperformance, of any con- tract for the transportation of persons or property be- tween places within the state, made by their respective owners, masters, agents, or consignees. 6. For injuries committed by them to persons or prop- erty in this state. Deman-ds for these several causes constitute liens upon all steamers, vessels and boats, and have priority in their order herein enumerated, and have preference over all other demands; but such liens only continue in force for the period of one year from the time the cause of action accrued. En. March 11, 1872. Am'd. 1873-4, 327. Cal. Rep. Cit. 124, 215; 133, 481; 142, 242; 142, 243; 142, 244. Subd. 2—142, 141. Prac. Act, sec. 317. En. April 29, 1851. Am'd. 1860, 304. Cal. Rep. Cit. 13, 371; 18, 532. Seamen's wages, jurisdiction of actions: Ante, sec. 114. Salvage. Civ. Code, sec. 2079. Preference over all other demands, as to labor claims: Post, sees. 1204-1206. Lien, -defined: Sec. 1180. Justices of the peace have not jurisdiction where the suit or proceeding Is for tbe recovery of seamen's wages for a voyage performed, in whole or in part, without the waters of this state: Ante, sec. 114. § 814. Actions, how brought. Actions for any of the causes specified in the preceding section must be brought against the owners by name, if known, hut if not known, that fact shall be stated in the complaint, and the defend- ants shall be designated as unknown owners. Other persons having a lien upon the vessel may be made de- fendants to the action, the nature and amount of such lien being stated in the complaint. En. March 11, 1872. Am'd. 1873-4, 328. Prac. Act, sec. 318. En. April 29, 1851. Unknown owners — Fictitious designation of: Ante, see. 474. Parties, generally: Ante, sees. 367 et secj. 55 Slo-519 ACTIONS ACJAINST STUAMERS, ETC. 324 § 815. Complairtt mujt be verified. The complaint must designate the steamer, vessel, or hoat by name, and must be verified by the oath of the plaintiff, or some one on his behalf. En. March 11, 1872. Prac. Act, sec. 319. En. April 29, 1851. Verification of pleadings: Ante, sec. 446. § 816. Summons, se»*vice of. The summons and copy of the complaint must be served on the owners if they can be found; otherwise, they may be served on the master, mate, or person having charge of the steamer, vessel or boat. E)n. March 11, 1872. Am'd. 1873-4, 328; 1880, 12. Prac. Act, sec. 320. En. April 29, 1851. Service of summons generally: Ante, sees. 410 et seq. § 817. Plaintiff may have such vessel, etc., attached. The plaintiff, at the time of issuing the summons, or at any time afterward, may have the steamer, vessel, or boat, with its tackle, apparel, and furniture, attached as secur- ity for the satisfaction of any judgment that may be re- covered in the action. En. March 11, 1872. Am'd. 1873-4, 328. Prac. Act, sec. 321. En. April 29, 1851. Attachment generally: Ante, sees. 537 et seq. § 818. The clerk must issue the writ of attachment The clerk of the court must issue a writ of attachment on the application of the plaintiff, upon receiving a written undertaking on behalf of the plaintiff, executed by two or more sufficient sureties, to the effect that if the judgment be rendered in favor of the owner of the steamer, vessel, or boat, as the case may be, he will pay all costs and damages that may be awarded against him, and all dam- ages that may be sustained by him from the attachment, not exceeding the sum specified in the undertaking, which shall in no case be less than five hundred dollars. En. March 11, 1872. Am'd. 1873-4, 328. Prac. Act, sec. 322. Eto. April 29, 1851. Attachment bond, generally: Compare sec. 539, ante. Qualifications of sureties: Post, sec. 1057. § 819. Such writ must be directed to the sheriff. The •writ must be directed to the sheriff of the county within which the steamer, vessel, or boat lies, and direct him to J25 ACTIONS AGAINST STEAMERS, ETC. §§ 81:0-832 attach such steamer, vessel, or boat, with its tackle, ap- parel, and furniture, and keep the same in his custody until discharged in due course of law. En. March 11, 1872. Am'd. 1873-4, 329. Prac. Act, sec. 323. En. April 29, 1851. § 820. Writ, execution of. The sheriff to whom the writ is directed and delivered must execute it without de- lay, and must attach and keep in his custody the steamer, vessel, or boat named therein, with its tackle, apparel, and furniture, until discharged in due course of law; but the sheriff is not authorized by any such writ to interfere with the discharge of any merchandise on board of such steam- er, vessel, or boat, or with the removal of any trunks or oCher property of passengers, or of the captain, mate, sea- men, steward, cook, or other persons employed on board. En. March 11, 1872. Am'd. 1873-4, 329. Prac. Act, sec. 324. En. April 29, 1851. § 821. The owner, master, etc., may appear and defend such vessel. The owner, or the master, agent, or con- signee of the steamer, vessel, or boat, may, on behalf of the owner, appear and answer, or plead to the action; and may except to the sufficiency of the sureties on the under- taking filed on behalf of the plaintiff, and may require sureties to justify, as upon bail on arrest. Eln. March 11, 1872. Am'd. 1873-4, 329. Prac. Act, sec. 325. En. April 29, 1851. Cal. Rep. Cit. 7, 409. Appearance: Post, sec. 1014. Answer: Ante, sec. 437. Justification of sureties: Ante, sec. 495, § 822. Discharge of attachment. After the attachment is levied, the owner, or the master, agent, or consignee of the steamer, vessel, or boat, may, in behalf of the owner, have the attachment discharged, upon giving to the sher- iff an undertaking of at least two sufficient sureties In an amount sufficient to satisfy the demand in suit, besides costs, or depositing that amount with the sheriff. Upon receiving such undertaking or amount, the sheriff must §§823,824 ACTIONS AGAINST STEAMERS, ETC. 326 restore to the owner, or the master, agent or consignee of the owner, the steamer, vessel, or boat attached. En. March 11, 1872. Am'd. 1873-4, 330. Prac. Act, sec. 326. En. April 29, 1851. Compare sec. 540. § 823. After appearance, attachment may, on motion, be discharged. After the appearance in the action of the owner, the attachment may, on motion, also be discharged, in the same manner, ami on like terms and conditions, as attachments in other cases, subject to the provisions of sec. 825. En. March 11, 1872. Am'd. 1873-4, 330. Prac. Act, sec. 327. En. April 29, 1851. Discharge of attachment: Ante, sees. 554-558. § 824. V/hen not discharged such vessel, etc., may be sold at public auction. Application of proceeds. If the attachment be not discharged, and a judgment be recov- ered in the action in favor of the plaintiff, and an execu- tion be issued thereon, the sheriff must sell at public auc- tion, after publication of notice of such sale for ten days, the steamer, vessel, or boat, with its tackle, apparel, and furniture, or such interest therein as may be necessary, and must apply the proceeds of the sale as follows: 1. When the action is brought for demands other than the wages of mariners, boatmen, and others employed in the service of the steamer, vessel, or boat sold, to the pay- ment of the amount of such wages, as specified in the execution. 2. To the pajonent of the judgment and costs, including his fees. 3. He must pay any balance remaining to the owner, or to the master, agent, or consignee, who may have ap- peared on behalf of the owner, or if there be no appear- ance, then into court, subject to the claim of any party or parties legally entitled thereto. En. March 11, 1872. Am'd. 1873-4, 330. Prac. Act, sec. 328. En. April 29, 1851. Sale on execution, generally: Ante, sees. 694 et seq. Payment Into court: Ante, sees. 572-574; post, sec. 2104. 327 ACTIONS AGAINST STEAMERS, ETC. §§ 820, 82S § 825. Mariners and others may assert their claim for wages, notwithstanding prior attachment. Any mariner, boatman, or other person employed in the service of the steamer, vessel, or boat attached, who may wish to assert his claim for wages against the same, the attchments be- ing issued for other demands than such wages, may file an af&davit of his claim, setting forth the amount and the particular service rendered, with the clerk of the court; and thereafter no attachment can be discharged upon filing an undertaking, unless the amount of such claim, or the amount determined as provided in the next section, be covered thereby, in addition to the other requirements; and any execution issued against such steamer, vessel, or boat, upon judgment recovered thereafter, must direct the application of the proceeds of any sale: 1. To the payment of the amount of such claims filed, or the amount determined as provided in the next section, which amount the clerk must insert in the writ; 2. To the payment of the judgment and costs and sheriff's fees, and must direct the payment of any balance to the owner, master, or consignee who may have ap- peared in the action; but if no appearance by them be made therein, it must direct a deposit of the balance in court. En. March 11, 1872. Prac. Act, sec. 329. En. April 29, 1851. Cal. Rep. Cit. 2, 310. Preferred claims, for wages, etc.: Post, sees. 1204-1207. Deposit in court: Ante, sees. 572 et seq.; post, sec. 2104. § 826. Proof of the claims of mariners and others. If the claim of the mariner, boatman, or other person, filed with the clerk of the court, as provided in the last section, be not contested within five days after notice of the filing thereof by the owner, master, agent, or consignee of the steamer, vessel, or boat against which the claim is filed, or by any creditor, it shall be deemed aximltted; but if con- tested, the clerk must indorse upon the affidavit thereof a statement that it is contested, and the grounds of the con- test, and must immediately thereafter order the matter to a single referee for his determination, or he may hear the procfs and determine the matter himself. The judgment of the clerk or referee may be reviewed by a court in § <;:: actions against stkamkrs, etc. ssb which the action Is pending, or a judge thereof, immedi- ately after the same is given, and the judgment of the court or judge shall be final. On the review, the court or judge maj- use the minutes of the proofs talvcn by the clerk or referee, or may take the proofs anew. Eii. March 11, 1872. Ara'd. 1873-4, 331 ;v 1880, 12. Prac. Act, sec. 330. En. April 29, 1851. § 827. Sheriff's notice of sale to contain measurement, tonnage, etc. The notice of sale published by the sheriff must contain a statement of the measurement and tonnage of the steamer, vessel, or boat, and a general description of her condition. En. March 11, 1872. Prac. Act, sees. 331, 332. En. April 29, 1851. 323 PL^CE OF TRIAL. OF ACTIONS. S 833 TITLE XL OF PROCEEDINGS IN JUSTICES' COURTS. Chapter I. Place of Trial of Actions in Justices' Courts, §§ 832-838. II. Manner of Commencing Actions in Justices' Courts, §§ 839-850. III. Pleadings in Justices' Courts, §§ 851-860. rV. Provisional Remedies in Justices' Courts, §§ 861-870. V. Judgment by Default in Justices' Courts, §§ 871,' 872. VI. Time of Trial and Postponements in Justices' Courts, §§ 873-877. VTI. Trials in Justices' Courts, §§ 878-887. VIII. Judgments (Other than by Default) in Justices' Courts, §§ 889-900. IX. Executions from Justices' Courts, §§ 901-905. X. Contempts in Ju.stices' Courts, §§ 906-910. XI. Dockets of Justices, §§ 911-918. XII. General Provisions Relating to Justice^ Courts, §§ 919-926. CHAPTER L PLACE OP TRIAL. OF ACTIONS IN JUSTICES' COmRTS. 5 832. Actions, in -what township or city may be commencei, 5 833. Place of trial may be changed In certain cases. § 834. Limitation on the right to change. § 835. To what court transferred. j 836. Proceedings after order changing place of trial. § 837. Effect of an order changing place of trial. § 838. Transfer of cases to the superior court. § 832. Actions, in what township or city may be com- menced. Actions in justices' courts must be commenced, and, subject to the right to change the place of trial, as in this chapter provided, must be tried: 1. If there be no justices' court for the township or city in which the defendant resides: in any city or township of the county in which he resides. 5 833 PL.\CE OF TRIAL OF ACTIONS. J30 2. When two or more persons are jointly, or jointly and severally, bound in any debt or contract, or otherwise jointly liable in the same action, and reside in different townships or different cities of the same county, or in dif- ferent counties: in the township or city in which any of the persons liable may reside. 3. In cases of injury to the person or property: in the township or city where the injury was committed, or where the defendant resides. 4. If for the recovery of personal property, or the value thereof, or damages for taking or detaining the same: in the township or city in which the property may be found, or in which the property was taken, or in which the de- fendant resides. 5. When the defendant is a nonresident of the county: in any township or city wherein he may be found. 6. When the defendant is a nonresident of the state: in any township or city in the state. 7. When a person has contracted to perform an obliga- tion at a particular place, and resides in another county, township, or city: in the township or city in which such obligation is to be performed, or in which he resides; and the township or city in which the obligation is incurred shall be deemed to be the township or city in which it is to be performed, unless there is a special contract to the contrary. 8. When the parties voluntarily appear and plead with- out summons: in any township or city in the state. 9. In all other cases: in the township or city in which the defendant resides. En. March 11, 1872. Am'd. 1873-4, 331. Cal. Rep. Cit 88, 410; 141, 267. Snbd. 7—66, 442. Prac. Act, sec. 535. En. April 29, 1851. Am'd, 1853, 278; 1867-8, 550. Cal. Rep. Cit. 34, 326. Place of trial generally: Ante, sees. 392 et seq. Jurisdiction of justice court: Ante, sees. 112-115; post, sec. 925. § 833. Place of trial may be changed in certain cases. The court may, at any time before the trial, on motion, change the place of trial in the following cases: S21 PLACE OF TRtAL OP ACTIONS. §§ S34-S38 1. When it appears to the satisfaction of the justice be- fore whom the action is pending, by affidavit of either party, that such justice is a material witness for either party; 2. When either party malies and files an affidavit that he believes that he cannot have a fair and impartial trial before such justice, by reason of the interest, prejudice, or bias of the justice; 3. When a jury has been demanded, and either party makes and files an affidavit that he cannot have a fair and impartial trial, on account of the bias or prejudice of th* citizens of the township or city against him; 4. When, from any cause, the justice is disqualified from acting; 5. When the justice is sick or unable to act. En. Maxch 11, 1872. Cal. Rep. Cit. 67, 106. Subd. 2—123, 413. Prac. Act, sec. 582. En. April 29, 1851. Am'd. 1853, 279; 1863, 502. Cal. Rep. Cit. 22, 37; 123, 413. Change of venue, generally: Ante, sees. 397 et seq. § 834. Limitation on the right to change. The place of trial cannot be changed, on motion of the same parf^ more than once, upon any or all the grounds specified fn the first, second, and third subdivisions of the preceding section. En. March 11, 1872. § 835. To what court transferred. When the court or- ders the place of trial to be changed, the action must be transferred for trial to a court the parties may agree up- on; and iif they do not so agree, then to another justices' court in the same county. En. March 11, 1872. § 836. Proceedings after order changing place of trial. After an order has been made, transferring the action for trial to another court, the following proceedings must be had: 1. The justice ordering the transfer must immediately transmit to th>e justice of the court to which it is trans- ferred, on payment by the party applying of all the costs that have accrued, all the papers in the action, together J§ S37. 838 PU'^.CE OF TRIAL OF ACTIONS. 832 with a certified transcript from his docket of the pro- ceedings therein; 2. Upon the receipt by him of such papers, the justice at the court to which the case is transferred must issue a notice, stating when and where the trial will take place, which notice must be served upon the parties at least one day before the time fixed for trial. En. March 11, 1872. Cal. Rep. Cit. 67, 106. § 837. Effect of an order changing place of trial. From the time the order changing the place of trial is made the court to which the action is thereby transferred has the same jurisdiction over it as though it had been commenced In such court. En. March 11, 1872. Cal. Rep. Cit. &0, 443. § 838. Transfer of cases to the superior court. The parties to an action In a justices' court cannot give evi- dence upon any question which involves the title or pos- session of real property, or the legality of any tax, impost, assessment, toll, or municipal fine; nor can any issue pre- senting such question be tried by such court; and if it ap- pear, from the answer of the defendant, verified by his oath, that the determination of the action will necessarily involve the question of title or possession to real property, or the legality of any tax, impost, assessment, toll, or municipal fine, the justice must suspend all further pro- ceedings in the action and certify the pleadings, and, if any of the pleadings are oral, a transcript of the same, from his docket to the clerk of the superior court of the county; and from the time of filing such pleadings or transcript with the clerk, the superior court shall have over the action the same jurisdiction as if it had been com- menced therein; provided, that in cases of forcible entry and detainer, of which justices' courts have jurisdiction, any evidence, otherwise competent, may be given, and any question properly involved therein may be determined. En. March 11, 1872. Am'd. 1880, 18. Cal Rep Cit. 50, 510; 51, 501; 56, 147; 66, 638; 66, 641; "69 558- 76, 184; 76, 185; 77, 542; 80, 560; 80, 562; 92' 51- '95, 380; 103, 139; 103, 140; 103, 141; 103, 142; 114 505; 114, 506; 114, 507; 126, 516; 126, 574; 131, 217; 135! 68; 140, 135. Prac. Act, sec. 581. En. April 29, 1851. Am'd. 1864, 117. Cal. Rep. Cit. 9, 50; 17, 69. 383 C50MMENCING ACTIONS. 15 839-841 Certifyincf to superior court, from justices' courts In cities and counties: Ante, sec. 92. Title or possession of realty involved: Ante, sec. 112, subd. 2. Legality of tax, etc., involved: Ante, sec. 112, subd. 4. Forcible entry and detainer, jurisdiction of: Ante, sec. 113, subd. 1. CHAPTER II. MANNER OF COMMENCING ACTIONS IN JUSTICES' COURTS. § 839. Actions, how commencerl. I 840. Summons may Ibsup within a year. § 841. Defendant may waive summonB. § 842. Parties may appear In person or by attorney. I 843. When guardian necessary, how appointed. § 844. Summons, how Issued, directed, and what to contain. § 845. Time for appearance of defendant. i848. Alias summons. 8^. Same. 848. Service of summons outside of county. 849. Summons, by whom and how served and returned. § 850. Notice of hearing. § 839. Actions, how commenced. An action in a jus- tice's court is commenced by filing a complaint. En. March 11. 1872. Am'd. 1875-6, 98. Cal, Rep. Clt. 81, 88. Prac. Act, sec. 588. En. April 29, 1851. Am'd. 1869-70, 687. Actions, in cities and counties, title, etc.: Sec. 89. Commencement of action: Sees. 350, 405. Action, when pending: Post. sec. 1049. Complaint generally: Ante, sec. 426. Fees payable in advance: Sec. 91, ante. § 840. Summons may Issue within a year. The court must indorse on the complaint the date upon which it was filed, and at any time within one year thereafter the plain- tiff may have summons issued. En. March 11, 1872. Issuance of summons, generally: Ante, sec. 406. Payment of fees. In cities and counties: Ante, sec. 91. § 841. Defendant may v>/aive summons. At any time after the complaint is filed, the defendant may. In writing, 5§ R42-M4 COMMK.VCING ACTIONS. 334 or by appearing and pleading, waive the issuing of sum- mons. En. March 11, 1872. Waiver — compare sec. 406, ante. § 842. Parties may appear in person or by attorney. Parties in justices' courts may appear and act in person or by attorney; and any person except the constable by whom the summons or jury process was served, may act as attorney. En. March 11, 1872. Cal. Rep. Cit. 72, 38. Prac. Act, sec. 534. En. April 29, 1851. Justices' court piactitioners: Ante, sec, 96. Attorneys, generally: Ante, sees. 275 et seq. § 843. When guardian necessary, how appointed. When an infant, insane, or incompetent person is a party, he must appear, either by his general guardian if he have one, or by a guardian ad litem appointed by the justice. When a guardian ad litem is appointed by the justice, he must be appointed as follows: 1. If the infant, insane, or incompetent person be plain- tiff, the appointment must be made before the summons Is issued, upon the application of the infant, if he be of the age of fourteen years; if under that age, or if insane or in- competent, upon the application of a relative or friend. 2. If the infant, insane, or incompetent person be defend- ant, the appointment must be made at the time the sum- mons is returned, or before the answer, upon the applica- tion of the infant, if he be of the age of fourteen years, and apply at or before the summons is returned; if he be under the age of fourteen, or be insane or incompetent, or neglect so to apply, then upon the application of a relative or friend, or any other party to the action, or by the jus- tice, on his own motion. En. March 11, 1872. Am'd. 1873- 4, 333; 1880, 18. Prac. Act, sec. 539. En. April 29, 1851. Guardians — compare sees. 372, 373, ante. § 844. Summons, how issued, directed, and what to contain. The summons must be directed to the defend- ant, signed by the justice, and must contain: 1. The title of the court, name of the county, city and 835 COMMENCING ACTIONS. §§ S45, S16 county, or township in which the action is brought, and the names of the parties thereto; 2. A direction that the defendant appear and answer before the justice, at his office, as specified in section eight hundred and forty-five of this code; 3. A notice that unless the defendant so appear and answer, the plaintiff will take judgment for any money or damages demanded in the complaint, as arising upon con- tract, or will apply to the court for the relief demanded in the complaint. If the plaintiff appears by attorney, the name of the attorney must be indorsed upon the summons. En. March 11, 1872. Am'd. 1875-6, 98; 1880, 19; 1899, 100. Cal. Rep. Cit. 67, 397; 107, US. Subd. 1—120, 514. Subd. 5—67, 396. Prac. Act, sec. 540. En. April 29, 1851. Contents of summons — compare sec. 407, ante. § 845. Time for appearance of defendant. The time specified in the summons for the appearance of the defend- ant must be as follows: 1. If an order of arrest be indorsed upon the summons, forthwith. 2. In all other cases, the summons must contain a direc- tion that the defendant must appear and answer the com- plaint within five days, if the summons be served in the city and county, township, or city, in which the action is brought; within ten days, if served out of the township or city, but in the county in which the action is brought, and within twenty days, if served elsewhere. En. March 11, 1872. Am'd. 1873-4, 407; 1875-6, 99; 1880, 19. Cal. Rep. Cit. 71, 159. Prac. Act, sec. 541. En. April 29, 1851. Am'd. 1854, 67; 1867-8, 551. Cal. Rep. Cit. 8, 340; 34, 645. § 846. Alias summons. If the summons Is returned without being served upon any or all of the defendants, the justice, upon the demand of the plaintiff, may issue an alias summons in the same form as the original, except that he may fix the time for the appearance of the defend- ant at a period not to exceed ninety days from its date. En. March 11, 1872. Alias summons, generally, Ante, sec 408. S 847-849 COMMENCING ACTIONS. 836 § 847. Same. The justice may, within a year from the date of the filing of the complaint, issue as many alias sum- mons as may be demanded by the plaintiff. En. March 11, 1872. Alias summons: Ante, sec. 408, § 848. Service of summons outside of county. The summons cannot be served out of the county of the justice before whom the action is brought, except when the action Is brought upon a joint contract or obligation of two or more persons, who reside in different counties and the summons has been served upon the defendant, resident of the county, in which case the summons may be served upon the other defendant out of the county; and except, also, when an action is brought against a party who has con- tracted to perform an obligation at a particular place, and resides in a different county, in which case summons may be served in the county where he resides; and except, also, where an action is brought for injury to person or prop- erty, and the defendant resides in a different county, in which case summons may be served in the county where the defendant resides. En. March 11, 1872. Am'd. 1873-4, »33; 1875-6, 99. Cal. Rep. Cit. 66, 442; 71, 556; 97, 57. Process of justices' courts — extent of: Ante, sees. 94, 106. § 849. Summons, by whom and how served and re- turned. The summons may be served by a sheriff or con- stable of any of the counties of this state or by any other person of the age of eighteen years or over not a party to the action. When a summons issued by a justice of peace is to be served out of the county in which it is issued the summons must have attached to it a certificate under seal by the county clerk of such county to the effect that the person issuing the same was an acting justice of the peace at the date of the summons and must be served and returned as provided in title five, part two of the code, or it may be served by publication and sections four hun- dred and thirteen and four hundred and twelve so far as they relate to the publication of summons are made appli- cable to justices' courts, the word justice being substituted for the word judge wherever the latter word occurs. En. March 11, 1872. Am'd. 1873-4, 407; 1891, 51; 1905, 27. 837 COMMENCING ACTIONS. S ^^ Cal. Rep. Cit. 59, 473; 59, 433; 73, 4; 138, 610. Prac. Act, sec. 542. En. April 29, 1851. Prac. Act, sec. 613. En. April 29, 1851. Am'd. 1860, 305; 1865-6, 407. Prac. Act, sec. 014. En. April 29, 1851. The act of 1875-6, 855, relating to the service of sum- mons m justice's court in San Francisco was superseded hy this section. Publication, service by: Ante, sees. 412, 413. § 850. Notice of hearing. When all the parties served ■with process shall have appeared, or some of them have appeared, and the remaining defendants have made de- fault, the justice must fix the day for the trial of said cause, whether the issue is one of law or fact, and give notice thereof to the parties to the action who have ap- peared, but in case any of the parties are represented by an attorney, then to such attorney. Such notice shall be in writing, signed by the justice, and substantially in the following form (filling blanks according to the facts) : In the justice court township (or city, or city and county), county, or city and county of , State of California plaintiff, vs. , defendant. To plaintiff, or attorney for plaintiff, and to , defendant, or , attorney for defendant. You and each of you will please take notice that the un- dersigned justice of the peace before whom the above- entitled cause is pending, has set for hearing the demurrer of , filed in said cause (or has set the said cause for trial, as the case may be), before me at my office in said township (or city, or city and county), at o'clock M., on the day of 19 Dated this day of 19 (Signed) Justice of the peace. Said notice shall be served by mail or personally. When served by mail the justice of the peace shall deposit copies thereof in a sealed envelope in the post office at least tea days before the trial or hearing addressed to each of the persons on whom it is to be served at their place of resi- Code CivU Proc.— 22. 5 851 PLEADINGS IN JUSTICES' COUKTS. MS dence and the postage prepaid thereon; provided that such notice shall be served by mail only when the attorney on whom service is to be made, resides out of the county in which said justice's court is situated. Wihen personally served said notice shall be served at least five days before the trial or hearin-g on the persons on whom it is to be served by any person competent and qualified to serve a summons in a justices' court and when personally served it shall be served returned and filed in like manner as a summons. The judge shall enter on his docket the date of trial or hearing: and when such notice shall have been* served by mail the justice shall enter on his docket the date of mailing such notice, of trial or hearing and :mch entry shall be prima facie evidence of the fart of such service. The parties are entitled to one hour in which to appear after the time fixed in said notice, but are not bound to remain longer than that time unless both parties have appeared and the justice being present is engaged in the trial of another cause. En. March 11. 1872. Am'd. 1875-6, 99; 1900-01, 598; 1905, 33. Cal. Rep. Cit. 74, 344; 74, 345; 97, 524; 97, 526; 109, 617; lis, 276; 118, 296; 136, 366; 138, 650. Time of trial: Post, sees. 873 et seq. CHAPTER III. PLEADINGS IN JUSTICES' COURTS. § Sol. Form of pleadings. § 852. Pleadings in justices' courts. § 853. Complaint defined. : § 854. When demurrer to complaint may be put In. J § 855. Answer. I 856. If the defendant omits to set up counterclaim. § 857. When plaintiff may demur to answer. § S.58. Proceedings on demurrer. § 859. Amendment of pleadings. § SCO. Answer or demurrer to amended pleadings. § P51. Form of pleadings. Pleadings in justices' courts. 1. Are not required to be in any particular form, but mast be such a^s to enable a person of common understand- iiiS to know what is intended; ^. May, except the complaint, be oral or in writing; 3. Must not be verified, unless otherwise provided in this titia; 4. If in writing, must be filed with the justice; 5. If oral, an entry of their substance must be made in the docket. En. March 11, 1872. 32D PLEADINGS IN JUSTICES' COURTS. §$ 852-S56 Cal. Rep. Cit. 5G. 525; 56, 526. Prac. Act, sec. 571. En. April 29, 1851- Cal. Rep. Cit. 9, 50; 20, 49. Prac. Act, sec. 572. En. April 29, 1851 Subd. 3 — verified answer: Ante, sec. 112, subd. 2, sec. 838. § 852. Pleadings in justices' courts. The pleadings are: 1. The complaint by the plaintiff; 2. The demurrer to the complaint; 3. The answer by the defendant; 4. The demurrer to the answer. En. March 11, 1872. Prac. Act, sec. 570. En. April 29, 1851. List of pleadin-gs — generally: Ante, sec. 422. S 853. Complaint defined. The complaint in justices' courts IS a concise statement, in writing, of the facts con- stituting the plaintiff's cause of action; or a copy of the account, note, bill, bond, or instniment upon which the a/Ctipn is based. En. March 11, 1872. Cal. Rep. Cit. 122, 470; 135, 51, Prac. Act, sec. 573. En. April 29, 185L Complaint — generally: Ante, sec. 426. § 854. When demurrer to complaint may be put in. The defendant may, at any time before answering, demur to the complaint. En. March 11, 1872. Prac. Act, sec. 578. En. April 29, 1851. Demurrer, generally: Ante, sec. 430. § 855. Answer. The answer may contain a denial of any or all of the material facts stated in the complaint, which the defendant believes to be untrue, and also a statement, in a plain and direct mannor, of any other facts constituting a defense or counterclaim, upon which an action might be brought by the defendant against the plaintiff in a justices' court. En. March 11, 1872. Cal. Rep. Cit. 110, 265. Prac. Act, sec. 574. En. April 29, 1851. Oal. Rep. Cit. 17, 85; 20, 49; 30, 546. Answer, generally: Ante, sec. 437. § 856. If the defendant omits to set up counterclaim. If the defendant omit to set up a counterclaim in the §§ 857-S59 PLEADINGS IN JUSTICES' COURTS. 340 cases mcntion'ed in the last section, neither he nor his assignee can afterward maintain an action against the plaintiff therefor. En. March 11, 1872. Cal. Rep. Cit. 122, 199. CJounteiclaira waived — generally: Ante, sec. 439. § 857. When plaintiff may demur to answer. When the answer contains new matter in avoidance, or consti- tuting a defense or a counterclaim, the plaintiff may, at any time before tbe trial, demur to the same for in- BufTiciency, stating therein the grounds of such demurrer. En. March 11, 1872. Demurrer to answer — generaily: Ante, sec. 443. § 858. Proceedings on demurrer. The proceedings on demurrer are as follows: 1. If the demurrer to the complaint is sustained, the plaintiff may, within such time, not exceeding two days, as the court allows, amend his complaint; 2. If the demurrer to a complaint is overruled, the de- fendant may answer forthwith; 3. If the demurrer to an answer Is sustained, the de- fendant may amend his answer within such time, not exceeding two days, as the court may allow; 4. If the demurrer to an ansv/er is overruled, the action must proceed as if no demurrer had been interposed. En. March 11, 1872. Cal. Rep. Cit. 109. 616; 109, 617. Subd. 1—135, 5; 135, 6. Subd. 2—135, 5. Subd. 3—135, 6. Proceedings on demurrer — compare sees. 472, 636 ante. § 859. Amendment of pleadings. Either party may, at any time before the conclusion of the trial, amend any pleading; but if the amendment is made after the issue, and it appears to the satisfaction of the court, by oath, that an -adjournment is necessary to the advei-se party in consequence of such amendment, an adjournment must be granted. The court may also, in its discretion, when an adjournment will by the amendment be rendered neces- sary, require as a condition to the allowance of such amendment, made after issue joined, the payment of costs to the adverse party, to be fixed by the court, not exceed- ing twenty dollars. The court may also, on such terms as may be just, and on payment of costs, relieve a party from a judgment by default taken against him by his mistake. 841 PROVISIONAL REMEDIES. 5§ 860, 861 inadvertance, surprise, or excusable neglect, but the ap- plication for such relief must be made within ten days after notice of the entry of the judgment and upon an affidavit showing good cause therefor. En. March 11, 1872. Am'd. 1905, 254. Cal. Rep. Cit. 74, 344; 75, 231; 75, 233; 75, 255; 97, 525; 109, 338; 120, 514; 127, 48; 133, 320. Prac. Act, sec, 580. En. April 29, 1851. Amendment, generally. Ante, sec. 473; adjournment because of; Post, sec. 874, subd. 2. § 860. Answer or demurrer to amended pleadings. When a pleading is amended, the adverse party may answer or demur to it within such time, not exceeding two days, as the court may allow. En. March 11, 1872. Time to plead — compare sec. 432, ante. CHAPTER IV. PROVISIONAL, REMEDIES IN JUSTICES' OOURT3. Article I. Arrest and Bail, §§ 861-865. II. Attachment, §§ 866-8C9. III. Claim and Delivery of Personal Property, § 870. ARTICl^E I. ARREST AND BAIL. § S61. Order of arrest and arrest of defen-Jant. § 862. Affidavit and undertaking for order of arrest. S 863. A defendant arrested must be taken before the Justice Im- mediately. S 864. The officer must give notice to the plaintiff of arrest. ( 865. The officer must detain the defendant. § 861 Order of arrest and arrest of defendant. An order to arrest the defendant may be indorsed 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 summons and brought before the justice, and there detained until duly discharged, in the following cases : 1. In an action for the recovery of money or damages, on a cause of action arising upon contract, express or im- §§ SC2, 863 PnOVISIONAL TIKMEDIES. ZVS plied, when the defendant is about to depart from the state, with intent to defraud his creditors; 2. In an action for a fine or penalty, or for money or property embezzled or fraudulently misapplied, or con- verted to his own use by one who received it in a fiduciary capacity; 3. When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought; 4. When the defendant has removed, concealed, or disposed of his property, or is about to do so, with intent to defraud his creditors. But no female can be arrested in any action. En. March 11, 1872. Cal. Rep. Cit. 86, 71. Prac. Act, sec. 544. En. April 29, 1851. Arrest and bail: Sees. 478 et seq. Mesne and final process of justices' courts may be is- sued to any part of the county: Sees. 94, 106. § 862. Affidavit and undertaking for order of arrest. Before an order for an arrest can be made, the party ap- plying must prove to the satisfaction of the justice, by the affidavit of himself or some other person, the facts upon which the application is founded. The plaintiff must also execute and deliver to tlie justice a written undertaking in the sum of three hundred dollars, with sufficient sure- ties, to the effect that the plaintiff will pay all costs tliat may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful, or without sufficient cause, not exceeding the sum specified in the undertaking. En. March 11, 1872. .Am'd. 1873-4, 334. Prac. Act, sec. 545. En. April 29, 1851. Affidavit and undertaking for arrest: Compare ante, sees. 481, 482. Qualification of sureties: Post, sec. 1057. § 863. A defendant arrested must be taken before the justice immediately. The defendant, immediately, upon being arrested, must be taken to the office of the justice who made the .order, and if he is absent or unable to try Sl3 PROVISIONAL, REMEDIES. §§ 864-866 the action, or if it appears to him by the affidavit of de- fendant, that he is a material witness in the action, the officer must immediately take the defendant before another justice of the township or city, if there is another, and if not, then before the justice of an adjoining township, who must take jurisdiction of the action, and proceed thereon, as if the summons had been issued and the order of arrest made by him. En. March 11, 1872. Cal. Rep. Cit. 95, 74; 141, 321. Prac. Act, sec. 546. En. April 29, 1851. Prac. Act, sec. 550. En. April 29, 1851. § 864. The officer must give notice to the plaintiff of arrest. The officer making the arrest must immediately give notice thereof to the plaintiff, or his attorney or agent, and indorse on the summons, and bubscribe a cer- tificate, stating the time of serving the same, the time of the arrest, and of his giving notice to the plaintiff. En. March 11, 1872. Prac. Act, sec. 547. En. April 29, 1851. § 865. The officer must detain the defendant. The officer making the arrest must keep the defendant in custody until he is discharged by order of the justice. En. March 11, 1872. Cal. Rep. Cit. 86, 71. Prac. Act, sec. 548. En. April 29, 185L ARTICLE II. ATTACHMENT. § S66. Writ of attachment shall issue upon affidavit. § 867. Undertaking on attachment must be required. § 868. Writ of attachment, substance of. Oflicer may take an urrJer- taking instead of levying. § S69. Certain provisions apply to all attachments in justices' courts. § 866. Writ of attachment shall issue upon affidavit. A writ to attach the property of the defendant must be issued by the justice at the time of, or after issuing sum- mons and before answer, on receiving an affidavit by or on behalf of the plaintiff, showing the same facts, as are re- quired to be shown by the affidavit specified in section fi.ve hundred and thirty-eight of this code. En. March 11, 1872, Cal. Rep. Cit. 122, 148. §§ SC7, S68 PROVISIONAL REMEDIES. 31* Prac. Act, sec. 551. En. April 29, 1851. Am'd. 1858, 154; ISGO, 304. Cal. Rep. Cit 34, 646. Prac. Act, sec. 552. En. April 29, 1851. Am'd. 1858, 154. Attachment, generally: Ante, sees. 537 et soq. Mesne and final process of justices' courts may be issued to any part of the county: Ante, sees. 94, 106. § 867. Undertaking on attachment must be required. Before issuing the writ, the justice must require a writton undertaking on the part of the plaintiff, with two or more sufficient sureties, in a sum not less than fifty, nor more than three hundred dollars, to the effect that if the defend- ant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which hs may sustain by reason of the attachment not exceeding the sum specified in the undertaking. En. March 11, 1872. Prac. Act, sec. 553. En. April 29, 1851. Am'd. 1858, 154; 1860, 304; 1871-2, 75. Cal. Rep. Cit. 34, 646. Undertaking on attachment, generally: Ante, sec. 539. § 868. Writ of attachment, substance of. Officer may take an undertaking instead of levying. The writ may be directed to the sheriff or any constable of the county in which such justice court is situate, and must require him to attach and safely keep all the property of the defend- ant within his county, not exempt from execution, or so much thereof as may be sufficient to satisfy the plain- tiff's demand, the amount of which must be stated in conformity with the complaint, unless the defendant giv3 him security, by the undertaking of two sufficient sure- ties, in an amount sufficient to satisfy such demand, be- sides costs; in which case, to take such undertaking. Several writs may be issued at the same time to th3 sheriffs of different counties; provided, that where a writ of attachment issued by a justice of the peace is to be served out of the county in which it was issued, the writ of attachment shall have attached to it a certificate under seal, by the county clerk of such county, to the effect that the person issuing the same was an acting justice of the peace of said county, at the date of the writ. En. Marcli 11, 1872. Am'd. 1905, 208. S45 PROVISIONAL REMEDIES. S§ S63, S70 Prac. Act, sec. 554. En. April 29, 1851. Contents of writ: Compare sec. 540, ante. § 869. Certain provisions apply to ail attachments in justices' courts. The sections of this code from section fivo hundred and forty-one to section five hundred and fifty-nine, both inclusive, are applicable to attachments issued in justices' courts, the word "constable" being sub- stituted for the word "sheriff," whenever the writ is di- rected to a constable, and the word "justice" being sub- stituted for the word "judge." En. March 11, 1872. Prac. Act, see. 555. En. April 29, 1851. §§ 541-559. Sec. 541, property attachable. Sees. 542, 543, property, how sheriff attaches. Sec. 544, garnishee's liability. Sec. 545, examination of defendant and gar- nishee. Sec. 546, inventory, return, etc. Sec. 547, por- ishables. Sec. 548, other property, immediate sale of. Sec. 549, claim by third person. Sec. 550, realization of attached property after judgment for plaintiff. Sec. 551, collecting balance by sheriff. Sec. 552, proceedings if execution unsatisfied. Sec. 553, eft'ect of judgment tor de- fendant Sees. 554-558, discharge of attachment. Sec. 559, sheriff's return. Releasing attachment. ARTICLE III. CLAIM AND DELIVERY OF PERSONAL PROPERTY. § 870. How claim and delivery enforced. § 870. How claim and delivery enforced. In an action to recover possession of personal property, the plaintiff may, at the time of issuing summons, or at any time thereafter before answer, claim the delivery of such prop- erty to him; and the sections of this code, from section five hundred and ten to section five hundred and twenty- one, both inclusive, are applicable to such claim when made in justices' courts, the powers therein given and duties imposed on sheriffs being extended to constables, and the word "justice" substituted for "judge." En. March 11, 1872. Cal. Rep. Cit. 106, 351. Prac. Act, sec. 556. En. April 29, 1851. Prac. Act, sec. 557. En. April 29, 1851. S 871 JUDGMENT BT DBFAUX.T. 3« Prac. Act, sec. 558. En. April 29, 1851. Prac. Act, sec. 559. En. April 29, 1851. Prac. Act, sec. 560. En. April 29, 1851. Prac. Act, sec. 561. En. April 29, 1851. Prac. Act, sec. 562. En. April 29, 1851. Prac. Act, sec. 563. En. April 29, 1851. Prac. Act, sec. 564. En. April 29, 1851. Prac. Act, sec. 565. En. April 29, 1851. Prac. Act, sec. 566. En. April 29, 1851. Prac. Act, sec. 568. En. April 29, 1851. Prac. Act, sec. 569. En. April 29, 1851. Prac. Act, sec. 592. En. April 29, 1851. Claim and delivery: Sees. 509 et seq. §§ 510-521. Sec. 510, aflBdavit for claim and delivery. Sec. 511, requisition for sheriff to take property claimed. Sec. 512, undertaking by plaintiff. Sec. 513, exception to sureties by defendant. Sec. 514, defendant claiming re- delivery. Sec. 515, justification of defendant's sureties. Sec. 516, qualifications of sureties. Sec. 517, breaking open building, etc. Sec. 518, property, how kept. Sec. 519, claim by third person. Sec. 520, sheriff to file notice, affidavit, etc. Sec 521 (Rep. March 24; took effect July L, 1874). CHAPTER V. JtJTWJMENT BT DEPATJLT IN JUSTICES' COURTS. § 871. Judgment when defendant fails to appear. S 872. Jtrdgment against defendant on demurrer. § 871. Judgment when defendant fails to appeaf. K the defendant fail to appear, and to answer or dems? within the time specified in the summons, then, upon proof of service of summons, the following proceedings must be had: 1. If the action is based upon a contract, and is for the recovery of money, or damages only, the court must render judgment in favor of plaintiff for the sum specified in the summons. 2. In all other actions the court must hear the evidence offered by the plaintiff, and must render judgment in bis 347 TRIAL AND POSTPONEMENTS. §§ 872, 874 favor for such sum (not exceeding the amount stated in the summons) as appears by such evidence to be just. En. March 11, 1872. Am'd. 1875-6, 100; 1880, 113. Cal. Rep. Cit. 59, 493; 74, 344; 108, 363. Subd. 1—66, 638; 135, 5. Default judgment, generally: Ante, sec. 585. § 872. Judgment against defendant on demurrer. In the following cases the same proceedings must be had, and judgment must be rendered in like manner, as if the defendant had failed to appear and answer or demur: If the complaint has been amended, and the defend- ant fails to answer it as amended, within the time allowed by the court; 2. If the -demurrer to the complaint Is overruled, and the defendant fails' to answer at once; 3. If the demurrer to the answer is sustained, and the defendant fails to amend the answer within the time allowed by the court. En. March 11, 1872. Cal. Rep. Cit. 109, 617. Subd. 2—135, 5. Compare sec. 858, ante. CHAPTER VI. TIMB OF TBIAL AND POSTPONEMENTS IN JUSTICES' COURTB. I 873. Time when trial must be commenced. 5 874. When court may, of Its own motion, postpone trial. § 875. Postponement by consent. § 876. Postponement upon application of a party. § 877. No continuance for more than ten days to be granted, unless upon filing of undertaking. § 873. Time when trial must be commenced. Unless postponed as provided in this chapter, or unless trans- ferred no another court, the trial of the action must com- mence at the expiration of one hour from the time speci- fied In the notice mentioned in section 850, and the tr'al must be continued without adjournment for Jiore than twenty-four hours at any one time, until all the issues therein are disposed of. En. March 11, 1872. Am'd. 1875-6, 100. Cal. Rep. Cit. 92, 432; 97, 526; 118, 276. 3g 874-876 TRIAL AND POSTPONEMENTS. S'J § 874. When court may, of its own motion, postpone trial. The court may, of its own motion, postpone the trial: 1. For not exceeding one day, if, at the time fixed by law or by an order of the court for the trial, the court is engaged in the trial of another action; 2. For not exceeding two days, if, by an amendment of the pleadings, or the allowance of time to make such amendment or to plead, a postponement is rendered neces- sary; 3. For not exceeding three days, if the trial is upon issues of fact, and a jury has been demanded. En. March 11, 1872. Cal. Rep. Cit. Subd. 2—135, 6. Amendment of pleadings, etc.: Ante, s<©cs. 858, 859. § 875. Postponement by consent. The court may, by consent of the parties, given in writing or in open court, postpone the trial to a time agreed upon by the parties. En. March 11, 1872. Prac. Act, sec. 583. En. April 29, 1851. Am'd. 1854, 68. Prac. Act, sec. 584. En. April 29, 1851. Am'd. 1854, 68. § 876. Postponement upon application of a party. The trial may be postponed upon the application of either party, for a period not exceeding four months: 1. The party making the application must 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 must show in what respect the testi- mony expected is material, and that he has used due dili- gence to procure it, and has been unable to do so; 2. If the application is on the part of the plaintiff, and the defendant is under arrest, a postponement for more than three hours discharges the defendant from custody, but the action may proceed, notwithstanding, and the de- fendant is subject to arrest on execution, in the same man- ner as if he had not been discharged; 3. If the application is on the part of a defendant under arrest, before it can be granted he must execute an under- taking, with two or more suflBcient sureties, to be approved by, and in a sum to be fixed by the justice, to the effect 349 TRIAL AND POSTPONEMENTS. § 877 that he wrll 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 the sure- ties will pay to the plaintiff the amount of any judgment which he may recover in the action, not exceeding the amount specified in the undertaking. On filing the undertaking speci- fied in this subdivision, the justice must order the defendant to be discharged from custody; 4. The party making the application must, if required by the adverse party, consent that the testimony of any witness of such adverse party, who is in attendance, may be then taken by deposition before the justice, and that the testimony so taken may be read on the trial, with the same effec", and subject to the same objections, as if the witness was produced; but the court may require the party making the application to state, upon affidavit, the evi- dence which he expects to obtain; and if the adverse party thereupon ndmit that such evidence would be given and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed. En. March 11, 1872. Postponement, generally: Ante, sec. 595; costs of: Post, sec. 1029. Arrest and bail: Ante, sees. 478 et seq. § 877. No continuance for more than ten days to be granted, aniess upon filing of undertaking. No adjourn- ment must, unless by consent, be granted for a period longer than ten days, upon the application of either party, except upon condition that such party file an undertaking, in an amount fixed by the justice, with two sureties, to be approved by the justice, to the effect that they will pay to the opposite party the amount of any judgment which may be recovered against the party applying, not exceeding the sum specified in the undertaking. En. March 11, 1872. Prac. Act, sec. 585. En. April 29, 1851. §5 &TS-SS2 TRIALS IN JUSTICES' COURTS. K» CHAPTER VTI. TRIALS IN JUSTICES' COURTS. 5 878. Issne defined, and the different kinds. § 879. Issue of law, how raised. § 880. Issue of fact, how raised. § SSL Issue of law, how tried. § S82. Issue of fact, how tried. § 883. Jury, how waived. § 884. Either jmrty falling to appear, trial may proceed at request of other party. 5 8S5. Challenges to jurors. § 886. Manner of pleading a written instrument. S 8S7. If a copy of an Instrument be filed, signatures will be deemed admitted, unless denied under oath. § 878. Issue defined, and the different kinds. Issues arise upon the pleadings when a fact or conclusion of law is maintained by the one party, and is controverted by the other. They are of two kinds: 1. Of law; and, 2. Of fact. En. March 11, 1S72. Compare this and the next two sections with sections 58S-590, ante. § 879. Issue of law, how raised. An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof. En. March 11, 1872. Same as sec. 589, ante. § 880. Issue of fact, how raised. An Issue of fact arises: 1. Upon a material allegation in the complaint contro- verted by the answer; and, 2. Upon new mattter in the answer, except an issue ot law is joined thereon. En. March 11, 1872. Same as sec. 590, ante. § 881. Issue of law, how tried. An issue of law must be tried by the court. En. Mai'ch 11, 1872, Compare sec. 591, ante. § 882. Issue of fact, how tried. An issue of fact must be tried by a jury, unless a jury is waived, in which case it must be tried by the court. En. March 11, 1872. Prac. Act, sec. 593. En. April 29, 1851. Compare sec. 592, ante. , 351 TRIALS IN JUSTICES' COURTS. §§ 883-837 § 883. Jury, how waived. A jury may be waived: 1. By consent of parties, entered in the docket; 2. By a failure of either party to demand a jury before the commencement of the trial of an issue of fact; 3. By the failure of either party to appear at the time fixed for the trial of an issue of fact. En. March 11, 1872. Prac. Act, sec. 587. En. April 29, 1851. Waiver of jury: Compare sec. 631, ante. § 884. Either party falling to appear, trial may proceed at request of other party. If either party fails to appear at the time fixed for trial, the trial may proceed at the request of the adverse party. En. March 11, 1872. Cal. Eep. Cit. 63, 436. Compare sec. 594, ante. § 885. Challenges to jurors. The challenges are either peremptory or for cause. Each party is entitled to three peremptory challenges. Either party may challenge for cause on any grounds set forth in section six hundred and two. Challenges for cause must be tried by the justice. En. March 11, 1872. Prac. Act, sec. 590. En. April 29, 1851. Challenges: Compare sees. 601, 602, ante. § 886. Manner of pleading a written instrument. When the cause of action or counterclaim arises upon an account or instrument for the payment of money only, the court, at any time before the trial, iL-ay, by an order under his hand, require the original to be exhibited to the Inspection of, and a copy to be furnished to, the adverse party, at such time as may be fixed in the order; or, if such order is not obeyed, the account or instrument cannot be given in evidence. En. March 11, 1S72. Prac. Act, sec. 576. En. April 29, 1851. Order for inspection: Post, sec. 1000. § 887. If a copy of an instrument be filed, signatures will be deemed admitted, unless denied under oath. If the plaintiff annex to his complaint, or file with the justice at the time of issuing the summons, the original or a copy of the promissory note, bill of exchange, or other §§ 889, 890 JUDGMENTS. 852 written obligation for the payment of money, upon which the action is brought, the defendant is deemed to admit the genuineness of the signatures of the makers, indorsers, or assignors thereof, unless he specifically deny the same in his answer, and verify the answer by his oath. En. March 11, 1872. Prac. Act, sec. 577. En. April 29, 1851. Am'd. 1854, 68. Compare sees. 447, 448, 853, ante. CHAPTER Vni. JUDGMENTS (OTHER THAN BY DEFAULT) IN JUSTICES' COURTS. 9 889. Judgment by confession. S 890. Judgment of dismissal entered in certain cases witout preju- dice. § 891. Judgment upon verdict. S 892. Judgment after trial by the court. § 893. Judgment when the defendant is subject to arrest. i 894. If the sum found due exceeds the jurisdiction of the justice, the exoess may be remitted. § 895. Offer to compromise before trial. 5 896. Costs may be included in the judgment. § 897. Abstract of judgment. § 898. Abstract may be filed and docketed in superior court. § 899. Effect of decketing. S 900. Judgment not a lien unless abstract is recorded in the record- er's office. § 889. Judgment by confession. Judgments upon con- fession may be entered up in any justices' court specified in the confession. En, March 11, 1872. Prac. Acr, sec. 536. En. April 29, 1851, Confession of judgment, generally: Post, sees. 1132-1135; jurisdiction: Ante, sec. 112, subd. 6. § 890. Judgment of dismissal entered in certain cases without prejudice. Judgment that the action be dismissed, without prejudice to a new action, may be entered with costs, in the following cases: 1. When the plaintiff voluntarily dismisses the action be- fore it is finally submitted; or fails to prosecute the action to judgment with reasonable diligence; provided a counter- claim has not been made, or afl&rmative relief sought by the cross-complaint or answer of the defendant; if a provisional remedy has been allowed, the undertaking must thereupon be delivered by the justice of the peace to the defendant who may have his action thereon; 2. When he fails to appear at the time specified in the summons, or at the time to which the action has been post- poned, or within one hour thereafter; 353 JUDGMENTS. §§ 891-894 3. When, after a demurrer to the complaint has been sus- tained, the plaintiff fails to amend it within the time al- lowed by the court; 4. When the action is brought in the wrong county, or township, or city. En. March 11, 1872. Am'd. 1905, 44. Cal. Eep. Cit. 106, 592; 106, 593. Subd. 3—97, 522. Subd. 4—141, 267. Prac. Act, sec. 586. En. April 29, 1851. Am'd. 1867-8, 552. Prac. Act, sec. 591. En. April 29, 1851. Dismissal: Compare sec. 581, ante. § 891. Judgment upon verdict. When a trial by jury has been had, judgment must be entered by the justice, at once, in conformity with the verdict. En. March 11, 1872. Cal. Eep. Cit. 68, 411; 102, 180. Prac. Act, sec. 594. En. April 29, 1851. Am'd. 1854, 68; 1863, 690. Entry of judgment, generally: Ante, sec. 664; as affect- ing appeals: Post, sec. 939. § 892. Judgment after trial by the court. When the trial is by the court, judgment must be entered at the close of the trial. En. March 11, 1872, Cal. Eep. Cit. 88, 559; 97, 525; 102, 180; 118, 276; 133, 819. § 893. Judgment when the defendant Is subject to ar- rest. The judgment in justices' courts must be entered Bubstanti;i!ly in the form required by section six hundred and sixty-seven of this code. When the judgment is ren- dered in a case where the defendant is subject to arrest and imprisonment thereon, the fact that the defendant is so subject, must be stated in the judgment. En. March 11, 1872. Am'd. 1873-4, 334. Prac. Act, sec. 597. En. April 29, 1851. Final process may be issued to any part of the county: Ante, sees. 94, 106. § 894. If the sum found due exceeds the jurisdiction of the justice, the excess may be remitted. When the amount found due to either party exceeds the sum for Code Civil Proo. — 28 i§ 895-897 JUDGMENTS. 354 which the justice is authorized to enter judgment, such party may remit the excess, and judgment may be rendered for the residue. En. March 11, 1872. Cal. Eep. Cit. 147, i07. Prac. Act, sec. 595. En. April 29, 1851. Limit, three hundred dollars: Ante, sec. 112. § 895. Offer to compromise before trial. If the defend- ant, at any time before the trial, offer, in writing, to allow judgment to be taken against him for a specified sum, the plaintia m'iy immediately have judgment therefor, with the costs ttien accrued; but if he do not accept such offer betcvre the trial, and fail to recover in the action a sum m excess of the offer, he cannot recover costs, but costs must be adjudged against him, and, if he recover, be deducted from Ms recovery. The offer and failure to accept it can- not b<3 given in evidence nor affect the recovery, other- wise tban as to costs. En. March 11, 1872. Am'd. 1877-8, i(rs. Prsks. Act, sec. 596. En. April 29, 1851. Offer to compromise: Compare sec. 997, post. § 8&C3. Costs may be included in the judgment. The justice must tax and include in the judgment the costs al- lowed by law to the prevailing party. En. March 11, 1872. Cal. Rep. Cit. 102, 180. Prac. Act, sec. 598. La. April 25, 1851. § 897. Abstra-2t of judgment. The justice, on the de- mand of a party in whose favor judgment is rendered, must give him an abstract of the judgment in substantially the following form (filling blanks according to the facts) : State of California, county, (or city and county). • , plaintiff, v. , defendant. In justices' court, before , justice of the peace, township (or city, or city and county), , 18 — (inserting date of abstract). Judgment entered for plaintiff (or defendant), for ^ , on the day of . I certify that the foregoing is a correct abstract of a judgment rendered in said action in my court — or (as the case may be) in the court of , justice of the peace, as appears by his docket, now in my possession, as his successor in ofRce. ' , Justice of the Peace. En. March 11, 1872. Am'd. 1880, 19. Cal. Rep. Cit. 52, 401. 855 EXECUTIONS. §§ 898-900 Prac. Act, sec. 599. En. April 29, 1851. Am'd. 1854, 69. Cal. Rep. Cit. 26, 156; 27, 371; 52, 402. § 898. Abstract may "be filed and docketed in superior court. The abstract maj be filed in the office of the county clerk of the county in which the judgment was rendered, and the judgment docketed in the judgment docket of the superior court thereof. The time of the receipt of the abstract by the clerk must be noted by him thereon, and entered in the docket. En. March 11, 1872. Am'd. 1880, 20. Docketing, generally: Ante, sec. 671. Recording transcript: Ante, sec. 674. § 899. Effect of docketing. From the time of docketing in the county clerk's office, execution may be issued there- on by the county clerk to the sheriff of any county in the state, other than the county in which the judgment was rendered, in the same manner and with like effect as if issued on a judgment of the superior court. En. March 11, 1872. Am'd. 1880, 20. Cal. Eep. Cit. 74, 107. Execution, generally: Ante, sees. 681 et seq. •Docketing: Ante, sec. 671. Eecording: Ante, sec. 674. § 900. Judgment not a lien unless abstract is recorded in the recorder's office. A judgment rendered in a jus- tice 's court creates no lien upon any lands of the defend- ant, unless such an abstract is filed in the office of the re- corder of the county in which the lands are situated. When so filed, and from the time of filing, the judgment becomes a lien upon all the real property of the judgment debtor, not exempt from execution, i^i such county, owned by him at the time, or which he may afterwards, and be- fore the lien expires, acquire. The hen continues for two years, unless the judgment be previously satisfied. En. March 11, 1872. Am'd. 1880, 114. Cal. Rep. Cit. 52, 401; 111, 486. Lien, extent and duration of: Compare sec. 674, ante. Si) U 01 003 JUDGMENTS. 856 CHAPTER IX. APPEALS TO SUPREME COURT, i 901. Execution may issue at Any time within five years. § 902. Execution, contents of. S 903. Renewal of execution. ( 904. Duty of officer receiving execution. S 905. Proceedings supplementary to execution. § 901. Execution may Issue at any time within five years. Execution for the enforcement of a judgment of a justice's court may be issued by the justice who entered the judgment, or his successor in office, on the application of the party entitled thereto, at any time within five years from the entry of judgment. En. March 11, 1872. Cal. Eep. Cit. 55, 533. Prac. Act, sec. 600. En. April 29, 1851. Cal. Rep. Cit. 8, 513; 26, 157. After five years, generally: Sec. 685. Execution, generally: Sees. 681 et seq. Final process may be issued to any part of the county: Ante, sees. 94, 106. § 902. Execution, contents of. The execution must be directed to the sheriff or to a constable of the county, and must be subscribed by the justice and bear date the day of its delivery to the officer. It must 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 the time when, it was rendered; the amount of judgment, if it be for money; and, if less than the whole is due, the true amount due thereon. It must contain, in like cases, similar directions to the sheriff or constable, as are required by the provi- sions of title nine, part two, of this code, in an execution to the sheriff. En. March 11, 1872. Cal. Rep. Cit. 138, 647; 138, 648; 138, 649. Prac. Act, sec. 601. En. April 29, 1851. Cal. Rep. Cit. 82, 188. Compare sees. 681 et seq. § 903. Renewal of execution. An execution may, at the request of the judgment creditor, be renewed before 357 CONTEMPTS. §§ 904-»0B the expiration of the time fixed for its return, by the word "renewed," written thereon, with the date tliereof, and subscribed by the justice. Such renewal has the effect of an original issue, and may be repeated as often as nec- essary. If an execution' is returned unsatisfied, another may be afterwaid issued. En. March 11, 1872. Cal. Rep. Cit. 107, 390. § 904. Duty of officer receiving execution. The sheriff Execution of writ: Compare, ante, sees. 691 et seq.; and generally: See sees. 688 et seq, ante. § 905, Proceedings Bupplementary to execution. The sections of this code, from seven hundred and fourteen to seven hundred and twenty-one, both inclusive, are ap- plicable to justices' courts, the word "constable" being substituted, to that end, for the word "sheriff," and the word "justice" for the word "judge." En. March 11, 1872. Cal. Rep. Cit. 47, 132; 133, 317. Proceedings supplementary to execution: Ante, sees. 714-72L CHAPTER X. CONTBTMPTa IN JUSTICES' CXJURTflk 5 906. Contempts a Justice may punish for. § 907. Proceedlnga for contempts. § 908. San.e. § 909. Punishments for contempts. 5 910. The conviction must be entered In the docket. § 906. Coritempts a justice may punish for. A justice may punish as for contempt, persons guilty of the follow- ing acts, and no other: L, Disorderly, contemptuous, or insolent behavior to- §§ 907-909 CONTEMPTS. 8&» wards (.lie Justice while holding the court, tending to in- terrupt the due course of a trial or other judicial proceed- ing; 2. A breach of the peace, boisterous conduct, or violent disturbance in the presence of the justice, or in the im- mediate vicinity of the court held by him, tending to in- terrupt the 'due course of a trial or other judicial proceed- ing; 3. Disobedience or resistance to the execution of a law- ful order or process, made or Issued by him; 4. Disobedience to a subpoena duly served, or refusing to be sworn or to answer as a witness; 5. Rescuing any person or property In the custody of an officer by virtue of an order or process of the court held by him. En. March 11, 1872. Prac. Act, sec. 616. En. April 29, 1851. Contempts, generally: Post, sees. 1209 et seq. Courts and Judicial officers, powers of: Ante, sec. 128, 177-179. § 907. Proceedings for contempts. When a contempt is committed in the immediate view and presence of the Justice, It may be punished summarily; to that end an order must be ma-de reciting the facts^ as they occurred, and adjudging that the person proceeded against is there- by guilty of contempt, and that he be punished as therein prescribed. En. March 11, 1872. Prac. Act, sec. 617. En. April 29, 1851. Compare sec. 1211, post. § 908. Same. "^Tien the contempt Is. not committed In the immediate view and presence of the justice, a war- rant of arrest may be issued by such justice, on which the person so guilty may be arrested and brought before the Justice immediately, when an opportunity to be heard In his defense, or excuse, must be given. The justice may, thereupon, discharge him, or may convict him of the of- fense. En. March 11, 1872. Compaie sees. 1212 et seq., post. § 909. Punishments for contempts. A justice may pun- ish for contempts by fine or imprisonment, or both; such fine not to exceed in any case one hundred dollars, and such imprisonment one day. En. March 11, 1872. Cal. Rep. Cit. 47, 132; 47, 133. 359 DOCKETS. 8S «10. 3H § 910. The conviction must be entered In the ciocket. The conviction, spvcoifying particularly the offense and the judgment thereon, must be entered by the justice la his docket. En. March 11, 1872. Prac. Act, sec. 618. En. April 29, 1851. CHAPTER XI. DOCKETS OF JUSTICES. § 911. Docket, what to contain. § 912. EiitiUs therein prima lacie evidence of the fact. § 913. An Index to the docket must be kept. § 914. Dockets must be delivered by justice to hla successor, or to county clerk. I 915. Proceedings when office becomes vacant, and before a successor is appointed. 3 916. A justice may issue execution or other process upon the docket oi; his predecessor. § 917. Justice Is successor of prior holder. 8 918. Designation of succeeding justice. § 911. Docket, what to contain. Every justice must keep a book, denominated a "docket," in which he must enter: 1. The title of every action or proceeding. 2. The object of the action or proceeding; and If a sum of money be claimed, the amount thereof. 8. 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 issued, a statement of the fact. 4. The time when the parties, or either of them, appear, or their nonappearance. If default be made; a irinuts cf the pleadings and motions; if in writing, r2f?rring to them; if not in writing, a concise statement of the ma- terial parts of the pleading. 5. Every adjournment, stating on whose application and to what time. 6. 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 return of the jury and for the trial. 7. The names of the jurors, who appear and are sworn, and the names of all witnesses sworn, and at whose re- quest §J 312-914 DOCKETS. 360 8. The verdict of the Jury, and when received; if the Jury disagree and are discharged, the fact of such disagree- ment and discharge. 9. The Judgment of the court, specifying the costs in- cluded, and the time when rendered. 10. 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, when and by whom. 11. The receipt of a notice of appeal. If any be given, and of the appeal bond, if any be filed. En. March 11, 1872. Am'd. 1873-4, 334. Cal. Rep. Clt. 74, 345; 85, 134; 124, SCO; 133, 487. Prac. Act, sec. 604. En. April 29, 1851. Am'd. 1855, 197. Cal. Rep. Cit 81, 54; 34, 326. Docket in Justices' court In cities and counties: Ante, sec. 93. § 912. Entries therein prima facie evidence of the fact. The several particulars of the last section specified must be entered under the title of the action to which they relate, and (unless otherwise In this title provided) at the time when they occur. Such entries In a justice's docl^et, or a transcript thereof, certified by the Justice, or his successor in office, are prima facie evidence of the facts so stated. En. March 11, 1872. Am'd. 1880, 20. Cal. Rep. Cit. 85, 134; 87, 631; 115, 85; 124, 860, Prac. Act, sec. 605. En. April 29, 1851. CaJ. Rep. Clt. 31, 54; 34, 326. Prima facie evidence: Post, sec. 1833. § 913. An Index to the docket must be kept. A Justice must keep an alphabetical index to his docket, in which must be entered the names of the parties to each Judg- ment, with a reference to the page of entry. The names of the plaintiffs must be entered In the index, in the alpha- betical order of the first letter of the family name. En. March 11, 1872. Prac Act, sec. 606. En. April 29, 1851. § 914. Dockets must be delivered by justice to his suc- cessor, or to county clerk. Every justice of the peace. 36] DOCKETS. S5 915-9" upon the expiration of his term of offlce, must deposit with his successor his official dockets and all papers filed in his office, as well his own as those of his predecessors, or any other which may be in his custody to be kept as public records. En. March 11, 1872. Prac. Act, sec. 607. En. April 29, 1851. Am'd. 1863, 232; 1S69-70, 223. § 915. Proceedings when office becomes vacant, and before a successor is appointed. If the office of a justice become vacant by his death or removal from the town- ship or city, or otherwise, before his successor is elected and qualified, the docket and papers in possession of such justice must be deposited in the office of some other jus- tice in the township, to be by him delivered to the suc- cessor of such justice. If there is no other justice in the township, then the docket and papers of such justice must be deposited in the office of the county clerk of the county, to be by him delivered to the successor in office of the justice. En. March 11, 1872. § 916. A justice may issue execution or other process upon the docket of his predecessor. Any justice with whom the docket of his predecessor or of any other jus- tice is deposited, has and may exercise over all actions and proceedings entered in such docket, the same jurisdiction as if originally commenced before him. In case of the creation of a new country, or the change ol the boundary between two counties, any justice into whose h^nds the docket of a justice formerly acting as such within the same territory, may come, is, for the puriwses of this section, considered the successor of such former justice. En. March 11, 1872. Prac. Act, sec. 608. En. April 29, 1851. Am'd, 1855, 304; 1863, 232. § 917. Justice Is successor of prior holdcf. The justice elected to fill a vacancy is the successor 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 is the successor. En. March 11, 1872. Prac. Act, sec. 609. En. April 29, 1851. §§ 91S-321 GENERAL PROVISIONS. 363 § 918. Designation of succeeding justice. Wlicn two or more justices are equally entitled under the last sec- tion, to be deemed the successors in office of the justice, a judge of. the superior court must, by a certificate sub- scribed by him and filed in the ofiice of the county clerk, designate which justice is the successor of a justice going out of office, or whose office has become vacant. En. March 11. 1872. Am'd. 1880, 20. Prac. Act, sec. 610. En. April 29, 1851. CHAPTER XII. GENERAL, PROVISIONS RELATING TO JUSTICES' COURTS. § 919. Justices may issue subpoenas and final process to any part of the county. § 920. Blanks must be filled in all papers issued by a justice, except subpoenas. § 921. Justices to receive all moneys collected and pay same to par- Ues. 5 922. In case of disability of Justice another Justice may attend on his behalf. I 92S. Justices may require security for costs. § 924. Who entitled to costs. 5 925. What provisions of code applicable to Justices' court* § 92*. Deposit in lieu of undertaking. S 919. Justices may issue subpoenas and final process to ai?iy part cf the county. Justices of the peace may issue subpoenas in any action or proceeding in the courts held by them, and final process or any judgment recovered therein, to any part of the county. En. March 13, 1872. Prac. Act, sec. 619. En. April 29, 1851. Am'd. 1863, 496. Final process, to any part of the county: Ante, sees. 94, 106. § 920. Blanks must be filled in all papers issued by a justice, except subpoenas. The summons, execution, and every other paper made or issued by a justice, except a subpoena, must be issued without a blank left to be filled by another, otherwise it is void. En. March 11, 1872. Cal. Rep. Cit 138, 647; 138, 649; 138, 650. Prac. Act, sec 611. En. April 29, 1351. { 921, Justices to receive all mor,«ys collected and pay s^asae to part'es. Justices ol the peace must receive from tlife sberifE or casstables of their county, all moneys col- 3C3 GENERAL PROVISIONS. 55 922-925 lected on any process or order issued from their courts respectively, and must pay the same, and all moneys paid to them, in their official capacity, over to the parties en- titled or authorized to receive them, without delay. En. March 11, 1872. Am'd. 1880, 20. Prac. Act, sec. 633. En. April 29, 185L Cal. Rep. Cit. 25, 538. § 922. In case of disability of justice another justice may attend on his behalf. In case of the sickness or other disability, or necessary absence of a justice, on a return of a summons, or at the time appointed for a trial, another .>ustice of the same township oi city may, at his request, attend in his behalf, and thereupon is 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 before the attending justice, subscribed by him, must be made in the docket of the justice before whom the summons was returnable. If the case is ad- journed, the justice before whom the summons was return- able may resume jurisdiction. En. March 11, 1872, Prac. Act, sec. 612. En. April 29, 1851. § 923. Justices may require security for costs. Justices may, in all cases, require a deposit of money or an under- taking, as security for costs of court, before issuing a summons. En. March 11, 1872. Prac. Act, sec. 634. En. April 29, 1851. Prepayment of fees: Ante, sec. 91. § 924. Who entitled to costs. The prevailing party In justices' courts is entitled to costs of the action, and also of any proceedings taken by him in aid of an execution issued upon any judgment recov2red therein. En. March 11, 1872. Am'd. 1873-4, 335. Prac. Act, sec. 631. En. April 29, 1851. Am'd. 1854, 71; 1885, 251. Costs: Ante, sec. 896. § 925. What provisions of code applicable to justices' courts. Justices' courts being courts of peculiar and limit- ed jurisdiction, only those provisions of this code which are, in their nature, applicable to the organization, powers. §5 926. 929 ayiL, ACTIONS IN POLICE COURTS. 184 and course of proceedings in justices' courts, or which have been made applicable by special provisions in this title, are applicable to justices' courts and the proceedings therein. En. March 11, 1872. Cal. Rep. Cit. 47, 133, 74, 343; 114, 373. Prac. Act, sec. 603. En. April 29, 1851. Am'd. 1853, 280. 1854, 70; 1854, 73. Prac. Act, sec. 635. En. April 29, 1851. Am'd. 1860, 3U6. Peculiar and limited jurisdiction: Ante, sees. 112-114. § 926. Deposit in lieu of undertaking. In all civil cases arising in justices' courts, wherein an undertaking is required as prescribed in this code, the plaintiff or defend- ant may deposit with said justice a sum of money in United States gold coin equal to the amount required by the said undertaking, which said sum of money shall be taken as security in place of said undertaking. En. Stats. 1877-8, 103. Cal. Rep. Cit. 147, 173; 147, 174. TITLE XII. PROCEKDINGS IN CIVIL ACTIONS IN POLICE COURTS. 5 929. How commenced. § 930. Summons must issue on filing complaint. § 931. Defendant may plead orally or In writing. § 932. Trial by jury, when defendant Is entitled to. § 933. Proceedings to be conducted as In justices' courts. § 929. How commenced. Civil actions in police courts are commenced by filing a complaint, setting forth the violation of the ordinance complained of, with such par- ticulars of time, place, and manner of violation as to en- able 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 com- plaint must be verified by the oath of the party complain- ing, or of his attorney or agent. En. March 11, 1872. Cal. Rep. Cit. 56, 148. Prac. Act, sec. 636. En. April 29, 1851. Jurisdiction of police court: See Pol. Code, sees. 4426, 4427. Provisions relating to police judges: See Pol. Code, Bees. 4424-4432. 3C5 CIVIL ACTIONS IN POLICE COURTS. §5 930-033 § 930. Summons must Issue on filing complaint. Imcae- diately after filing the complaint, a summons must be issued, directed to the defendant, and returnable either immediately or at any time designated therein, not exceed- ing four days from the date of its issuing. En. March 11, 1872. Cal. Rep. Cit 56, 148; 127, 540. Prac Act, sec. 637. En. April 29, 1851. § 931. Defendant may plead orally or in writing. On the return of the summons the defendant may answer the complaint. The answer may be oral or in writing, and immediately thereafter the case must be tried, unless, for good cause shown, an adjournment is granted. En. March 11, 1872. Prac. Act, sec. 638. En. April 29, 1851. § 932. Trial by jury, when defendant Is entitled to. In all actions for violation of an ordinance, where the fine, forfeiture, or penalty imposed by the ordinance is less than fifty dollars, the trial must be by the court In ac- tions where the fine, forfeiture, or penalty imposed by the ordinance is over fifty dollars, the defendant is entitled to a trial by jury. En. March 11, 1872. Prac. Act, sec. 639. En. April 29, 1851. § 933. Proceedings to be conducted as In justices' courts. All proceedings in civil actions in police courts must, except as in this title otherwise provided, be con- ducted in the same manner as civil actions in justices' courts. En. March 11, 1872. Cal. Rep. Cit. 51, 500; 56, 148; 95, 380. Prac. Act, sec. 641. En. April 29, 1851. Civil proceedings in justices' courts: Sees. 832-926. Disqualification of police judge, calling in of justice of the peace: See Pol. Code, sec. 4428. I 938 APPEALS IN GENEUAL. tSB TITLE XIII. OF APPEALS IN CIVIL ACTIONS. Chapter I. Appeals in General, §§ 936-959. II. Appeals to Supreme Court, §§ 9(;;!-9()6. III. Appeals to Superior Courts, §§ 974-yi)0. CHAPTER I. APPEALS IN GENERAL. 5 936. Jurlgr.Tient an-d orders may be reviewed. I 937. Orders made out of court, without notice, may be reviewed by the judge. § 938. Party aggi ieved may appeal. Names of parties. § 939. Within what time appeal may be taken. § 940. Appeal, how taken. § 941. Undertaking or Uepo.sit on appeal. § 942. Undertaking on appeal from a money judgment. § 943. Apped.1 from a judgment for delivery of documents. § 944. Appeal from a judgment directing execution of a conveyance, etc. § 945. Undertaking on appeal concerning real property. § 946. Stay of proceedings. The security on appeal may be lim- ited in the case of an executor, etc. § 947. Undertaking may be in one instrument or several. § 948. Justification of sureties on undertaking on appeal. § 'J49. Undertakings In casrs not specified. § 950. What papers to be used on an appeal from the judgment. § 951. What papers used on appeals from orders, except orders grant- ing or refusing new trials. 5 952. What papers to be used on an appeal from an order grant- ing or refusing a new trial. § 953. Copies an>3 undertakings, how certified. § 954. When an appeal may be dismissed. When not. § 955. Effect of dismissal. § 956. What may be reviewed on appeal from judgment. § 957. Remedial powers of an appellate court. § 958. On judgment on appeal, remittitur must be certified to th« clerk of the court below. § 959. Provisions of this chapter not applicable to appeals to supe- rior courts. Gen. Cit. to Chap.— Cal. Rep. Cit. 101, 199; 114, 214; 119, 438. § 936. Judgment and orders may be reviewed. A judg- ment or order in a civil action, except when expressly- made final by this code, may be reviewed as prescribed in this title, and not otherwise. En. March 11, 1872. Cal Rep. Cit. 54. 520; 61, 194; 68, 338; 72, 192; 84, 9; 84, 488; 90, 327; 119, 439; 119, 440; 133, 108; 140, 356. SG? APPEALS IN GEXERAU §§ ^37, WSJ Prac. Act, sec. 333. En. April 29, 1851. Am'd. 1854. G4. Cal. Rep. Cit. 3, 249; 8, 301; 29, 462. Prac. Act, sec. 338. En. April 29, 1851. Am'd. 1863, 644. Cal. Rep. Cit. 8, 323; 8, 619; 15, 356; 17, 514; 25, 485; 25, 487; 25, 488; 25, 514; 25, 515; 27, 410; 27, 474; 28, 240; 28, 262; 28, 419; 30, 184; 30, 221; 32, 320; 32, 323; 41, 442; 41, 634; 45, 109; 47, 427; 47, 641. Prac. Act, sec. 339. En. April 29, 1851. Am'd. 1855, 303; 1863, 644. Cal. Rep. Cit. 8, 323; 8, 619; 9, 210; 28, 240; 28, 262. Prac. Act, sec. 340. Eu. April 29, 1851. Prac. Act, sec. 341. En. April 29, 1851. Cal. Rep. Cit 8, 619; 28, 262. Prac. Act, sec. 342. En. April 29, 1851. Am'd. 1864, 247. Cal. Rep. Cit. 8, 619; 45, 44. Prac. Act, sec. 343. En. April 29, 1851. Am'd. 1854, 64. Cal. Rep. Cit. 17, 514; 22, 362; 28, 163; 33, 554; 33, 678; 41, 442; 41, 443; 45, 44; 45, 90. Prac. Act, sec. 344. En. April 29, 1851. Cal. Rep. Cit. 24, 448; 28, 297. Judgments and orders, appeal from: Sec. 939. § 937. Orders made out of court, without notice, may be reviev^ed by the judge. An order made out of court, with- out notice to the adverse party, may be vacated or modi- fied without notice, by the judge who made it; or may be vacated or modified on notice, in the manner in which other motions are made. En. March 11, 1872. Cal. Rep. Cit 68, 401; 72, 271; 72. 272; 72, 273; 72, 275; 72, 276; 72, 552; 145, 571; 145, 572. Prac. Act sec. 334. En. April 29, 1851. Cal. Rep. Cit 9, 19; 12, 448; 33, 390; 33, 391; 72, 373; 72, 276. Orders, generally: Sees. 1003 et seq. § 938. Party aggrieved may appeal. Names of parties. Any party aggrieved may appeal in the cases prescribed in this title. The party appealing is known as the appellant, and the adverse party as the respondent. En. March 11, 1872. Cal. Rep. Cit. 53, 745; 55, 311; 56, 626; 73, 96; 79, 249; 83, 422; 83, 564; 83, 565; 88, 49; 98, 605; 102, 260; 117, 239; 118, 503; 127, 452; 139, 238; 144, 506; 144, 507; 144, 508; 147, 608. g 939 APPEALS IN GENERAU «68 Prac. Act, sec. 335. En. April 29. 1851. Cal. Rep. Cit. 38, 640. Death of party, effect of: Ante, sec. 385. § 939. Within what time appeal may be taken. An appeal may be taken: 1. From a final judgment in an action or special proceed- ing commenced in the court in which the same is rendered, within six months after the entry of judgment. But an exception to the decision or verdict, on the ground that it is not supported by the evidence, cannot be reviewed on an appeal from the judgment, unless the appeal is taken within sixty days after the rendition of the judg- ment; 2. From a judgment rendered on an appeal from an in- ferior court, within ninety days after the entry of such judgment; 3. From an order granting or refusing a new trial; from an order granting or dissolving an injunction; from an order refusing to grant or dissolve an injunction; from an order appointing a receiver; from an order dissolving or refusing to dissolve an attachment; from an order granting or refusing to grant a change of the place of trial; from any special order made after final judgment; from an in- terlocutory judgment, order or decree hereafter made or entered in any action to redeem real or personal property from a mortgage thereof, or lien thereon determining such right to redeem and ordering an accounting; from an interlocutory judgment in actions for partition of re^l property; and from an order confirming, changing, modi- fying, or setting aside the report, in whole or in part, of the referees in actions for partition of real property in the cases mentioned in section seven hundred and sixty- three of this code, within sixty days after the order of [or] interlocutory judgment is made and entered in the minutes of the court, or filed with the clerk. En. March 11, 1872. Am'd. 1880, 61; 1897, 55; 1899, 7. CaL Rep. Cit. 49, 108; 52, 652; 60, 421; 64, 611; 66, 137; 67, 200; 69, 204; 72, 193; 80, 169; 81, 215; 84, 532; 84, 533; 89, 521; 90, 327; 108, 454; 110, 174; 116, 72; 118, 484; 118, 485; 119, 440; 120, 236; 133, 248; 137, 308; 137, 309; 137, 310; 137, 361; 137, 371; 138, 690; 138, 726; 143, 495; 146, 325. Subd. 1—46, 546; 52, 623; 53, 745; 54, 519; 55, 45; 60, 572; 61, 334; 65, 221; 71, 302; 72, 192; 75, 497; 76, 354; 77, 526; 80. 168; 81. 246; 84, 488; 84, 531; 87, 412; 89, 369 APPEALS IN GENEKAU. 9 WO 100; 90, 5; 99, 178; 106, 150; 107, 52; 111, 2; 111, 635; 113, 374; 117, 228; 119, 159; 122, 15G; 123, 510; 127, 523; 128, 141; 129, 46; 129, 201; 131, 325; 133, 108; 140, 664; 145. 117. Subd. 3—52, 77; 53, 26; 53. 632; 57, 634; 62, 545; 63, 233; 64, 611; 65, 221; 65, 501; 71, 400; 71, 518; 77, 611; 91, 356; 99, 410; 101, 584; 106, 145; 110, 57; 125, 16; 127, 419; 129, 46; 130. 181; 130, 509; 131, 279; 132, 325; 132, 341; 133, 108; 133. 365; 134, 122; 137, 56; 139, 259; 140, 356; 145, 147. Prac. Act, sec. 336. En. April 29, 1851. Am'd. 1854, 64; 1859, liO, 1863, 756; 1866, 706. Cal. He'x Cit. 6, 232; 8, 57; 12, 281; 20, 142; 24, 335 24, 448; 28, 417; 28, 419; 31, 208; 31, 209; 31, 367 53, 392; 35, 553; 35, 698; 38, 387; 38, 424; 41, 407 42, 114; 49, 128; 54, 519; 57, 634; 67, 204; 84, 488 122, 156; 137, 309. Subd. 1—42, 119. Subd. 2-42, 119. Subd. 3—42, 113; 43, 627; 91, 356. Effect of appeals: See sec. 946, infra. As to the record on appeals: See sec. 951, post. Appeals, to supreme court: Post, sees. 963-966; to supe- rior court: Post, sees. 974-980. Definition of judgment: Sec. 577; exceptions, need of: Sees. 646, 956. As to appeal from judgment on controversy submitted without action: Post, sec. 1140. Orders reviewable on appeal from judgment: Post, sec. 956. § 940. Appeal, how taken. An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney. The order of service is immaterial, but the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived by the adverse party in writing. En. March 11, 1872. Am'd. 1873-4, 336. Cal. Rep. Cit. 46, 651; 48, 568; 52, 326; 54, 494; 55,395 56, 120; 60, 281; 60, 282; 62, 517; 63, 280; 63, 385 65, 222; 67, 201; 68, 169; 68, 190; 68, 328; 68, 329 68, 339; 68, 344; CS, 345; 69, 82; 71, 296; 72, 159 72, 160; 74, 105; 75, 540; 75, 543; 79, 104; 79, 249 80, 63; 81, 245; 83, 137; 83, 564; 83, 565; 87, 243 83, 598; 95, 442; 99, 42; 99, 174; 99, 267; 103, 68 109, 603; 111, 430; 112, 149; 112, 632; 114, 42; 116, 494 Code Civil Proc— 24. ] 941 AFPEAI.S IN GENERAL. IW 122, 389; 124, 543; 128, 213; 129, 158; 129, 190; 130, 61; 130, 554; 131, 289; 132, 198; 132, 253; 133, 3G2; 13S, 3G3; 134, 179; 134, 181; 134, 460; 137, 375; 139, 77; 141,357; 141,358; 143,405; 143,479; 146,575. Prac. Act, sec. 337. Eu. April 29, 1851. Cal. Rep. Cit. 15, 384; 24, 97; 24, 9S; 25, 355; 29, 403; 30, 183; 30, 184; 38, 040; 39, 151; 60, 282; 62, 517; 115, 384. Service of papers: Sees. 1010-1017. Notice, generally: Post, sees. 1010 et scq. Undertaking on appeal, requirements of: Post, sec. 941; unnecessary, when: Post, sees. 965, 1058; exception to sureties, time for: Ante, sec. 648, Exceptions, necessity for: Ante, sec. 646, post, sec. 956. As to the practice on appeals in criminal causes: See Pen. Code, sees. 1237 et seq. § J41. Undertaking or deposit on appeal. The under- taliiug on appeal must be in writing, and must be exe- cuted on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all -damases and costs which may be awarded against him on the appeal, or on a dismissal thereof, not exceeding three hundred dol- lars; or that sum must be deposited with the clerk with whom the judgment or order was entered, to abide the event of the appeal. En. March 11, 1872. Cal. Rep. Cit. 52, 623; 54, 184; 54, 494; 58, 356; 63, 384, 63, 385; 64, 232; 04, 475; 07, 215; 69, 242; 69, 243, 71, 296; 72, 159; 72, 100; 80, 453; 81, 228; 89, 32, 89, 33; 94, 567; 98, 626; 107, 195; 109, 003; 123, 447, 120, 458; 129, 158; 129, 159; 129, 301; 132, 341; 134, 63; 136, 674; 137, 449; 140, 83; 140, 87; 141, 357; 143, 315; 144, 633. Prac. Act, sec. 348. En. April 29, 1851. Cal. Rep. Cit. 7, 132; 9, 39; 9, 250; 15, 384; 15, 386; 24, 96; 32, 374; 42, 278; 61, 338. Prac. Act, sec. 360. En. April 29, 1851. Am'd. 1854, 65; 18G5-6, 847. Prac. Act, sec. 361. En. April 29, 1851. Am'd. 1854, 66. Prac. Act, sec. 362. En. April 29, 1851. Am'd. 1863, 277; 1854, 66; 1854, 73. Cal. Rep. Cit. 28, 117. Undertaking on appeal, filing, time for: Sec. 940; and see sec 1054; sufficiency of: Sec. 954; sureties, paying judgment: Sec. 1059. I>eposit with clerk: Sec. 948. 871 APPEALS IN GENERAL. 8 942 Filing- new undertaking in appellate court: Se« post, sec. 954. Qualification of sureties: Sec. 1057. § 942. Undertaking on appeal from a money Judgment. If the appeal be from a judgment or order directing the payment ci' money, it does not stay the execution of the judgment or order unless a written undertaking be exe- cuted on the part of the appellant, by two or more sureties, to the effect that they are bound in double the amount named m the judgment or order; that if the judgment or order appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellant will pay the amount directed *.o be paid by the judgment [or] order, or the part of such amount as to which the judgment or order is aflirmed, if affirmed only in part, and all damages and costs which may be awarded against the appellant upon the apptal, and that if the appellant 'does not make such payment within thirty days after the filing of the remitti- tur from the supreme court in the court from which the appeal is taken, judgment may be entered on motion of the respondent in his favor against the sureties, for such amount, together with the interest that may be due there- on, and the damages and costs which may be awarded against the appellant upon the appeal. If the judgment or order appealed from be for a gi'eater amount than two thousand dollars, and the sureties l?Tli;ALS TO SUPREME COURT. SW Remittitur: Sees. 56, 958; judgment becomes final thirty days after it is filed: See Const., art 6, sec. 2. § 959. Provisions of this chapter not applicable to ap- peals to superior courts. The provisions of this chapter do not apply to appeals to superior courts. En. March 11, 1872. Am'd. 1880, 7. Cal. Rep. Cit. 119, 439; 122, 576. Appeals to superior courttj; Tc-st, sees. 974-980, CHAPTER II. APPEAL^ TO SUPREME COVteT. [New chapter II, superseding the original chapter n, was adopted March 26, 1880. Amendments 1880, p. 14.] § 963. When an appeal may be taken. § 964. Appeals; In what cases appealed from justices' cxmrta, § 96.5. Appeals by executors and administrators. § 96«. Acts of executors and administrators, where appolrtmeiit va- cated. § 953. When an appeal may be taken. An appeal may be taken to the supreme court, from a superior court, in the following cases: 1. From a final judgment entered in an action, or special proceeding, commenced in a superior court, or brought into a superior court from another idgturt; 2. From an order granting or refusing a new trial, or granting or dissolving an injuncticE, or refusing to grant or dissolve an injunction, or appointing a receiver, or dis- solving or refusing to dissolve an attachment, or changing or refusing to change the place of trial, from any special order made after final judgment, from any interlocutory judgment, order, or decree hereafter made or entered In actions to redeem real or personal property from a mort- gage thereof, or lien thereon, determining such right to redeem, and directing an accounting; and from such inter- locutory judgment in actions for partition as determines the rights and interests of the respective parties, and di- rects partition to be made; 3. From a judgment or order granting or refusing to grant, revoking or refusing to revoke, letters testamentary. 881 APPEALS TO SUPREME COURT. S 963 or of administration, or of guardianship; or admitting or refusing to admit a will to probate, or against or in favor of the validity of a will, or revoking or refusing to revoke the probate thereof; or against or in favor of setting apart property, or making an allowance for a widow or child; or against or in favor of directing the partition, sale, or con- veyance of real property, or settling an account of an executor, administrator, or guardian; or refusing, allow- ing, or directing the distribution or partition of an estate, or any part thereof, or the payment of a debt, claim, or legacy, or distributive share; or confirming or refusing to confirm a report of an appraiser or appraisers setting apart a homestead. En. March 11, 1872. Am'd. 1880, 14; 1889, 324; 1897, 209; 1899, 8; 1900-01, 85. Cal. Eep. Cit. 45, 245; 60, 412; 62, 616; 72, 489; 74, 218; 91, 356; 98, 640; 99, 269; 112, 118; 116, 72; 138, 190; 140, 467; 140, 514; 142, 629; 142, 682; 146, 32; 147, 128; 147, 357; 147, 736. Subd. 1—93, 651; 118, 256; 122, 584; 125, 241; 181, 612; 183, 588; 135, 14; 135, 182. Subd. 2—56, 11; 65, 189; 77, 648; 78, 38; 82, 35; 88, 315; 93, 413: 98, 638; 98, 689; 110, 40; 110, 57; 111, 214; 119, 439; 119, 440; 122, 96; 130, 509; 184, 122; 136, 676; 187, 56. Subd. 3—56, 209; 00, 283; 65, 838; 67, 457; 68, 133: 70, 149; 71, 323; 72, 488; 73, 203; 74, 205; 74, 217; 75, 421; 80, 170; 82, 10; 82, 162; 83, 326; 83, 619; 83, 620; 84, 598; 86, 59; 86, 553; 88, 313; 88, 314; 90, 78; 94, 353; 98, 605; 102, 657; 106, 431; 109, 646; 110, 567; 111, 271; 117, 507; 118, 256; 119, 582; 120, 697; 121, 879; 121, 393; 128, 811; 128, 312; 130, 344; 131, 429; 133, 222; 145, 87; 145, 561. Frac. Act, sec. 347. En. April 29, 1851. Am'd. 1854, 64; 1863, 756; 1866, 707. Cal. Eep. Cit. 7, 253; 9, 19; 17, 517; 24, 337; 24, 448; 28, 320; 31, 208; 31, 867; 83, 890; 83, 391; 33, 892; 35, 290; 37, 23; 41, 642; 42, 114; 42, 390; 64, 623. Prob. Act, sec. 297. En. April 22, 1850. Eep. 1851, 489. En. 1851, 448. Am'd. 1855, 301; 1861, 654. Ca. Eep. Cit. 30, 111; 45, 259. Prob. Act, sec. 298. En. April 22, 1850. Eep. 1851, 489. En. 1851, 448. Am'd. 1855, 301. Cal. Eep. Cit. 34, 685. Prob. Act, sec. 299. En. April 22, 1850. Eep. 1851, 489. En. 1851, 448. Am'd. 1855, 801. Cal. Eep. Cit. 25, 514; 45, 260. Prob. Act, sec. 300. En. April 22, 1850. Eep. 1851, 489. En. 1851, 448. Am'd. 1855, 302. Cal. Eep. Cit. 25, 514; 84, 685. Iti 9M-966 APPEALS TO SUPT115ME COURT. Ml PVob. Act, sec. 301. En. April 22, 1S50. Rep. 1851, 489. En. 1851, 448. Am'd. 1855, 302; 18G1, C55. Api/eal from final judgment: Compare sec. 939, subd. 1, ance. Appeals from orders: Compare sec. 939, subd. 3, ante. Appeals from probate decisions, generally: Post, sees. 1714, 1715; special administration, granting, no appeal: Post. sec. 1413. Appeals in criminal cases: See sec. 52, ante, and Pen. Code, sees. 1237, 1238. § 964. Appeals; in what cases appealed from Justices' courts. The foregoing section does not apply in cases ap- pealed from justices', police, or other inferior courts, ex- cept cases of forcible entry and detainer, and cases in- volving the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars. En. Stats. 1880, 15. Cal. Rep. Cit 58, 356; 110, 40; 119, 439. Appeals to superior court: Post, sees. 974 et seq. Forcible entry and detainer, concurrent jurisdiction of JuBtices' courts: Ante, sec. 113, subd. 1. § 965. Appeals by executors and administrators. When an executor, administrator, or guardian, who has given an official bond, appeals from a judgment or order of the superior court made in the proceedings had upon the es- tate of which he is executor, administrator, or guardian, his official bond shall stand in the place of an undertaking on appeal; and the sureties thereon shall be liable as on such undertaking. En. Stats. 1880, 15. Cal. Rep. Cit 80, 63; 88, 481; 89, 155; 102, 657; 127, 451. Probate appeals: Ante, sec. 963, subd. 3. § 966. Acts of executors and administrators, where ap- pointment vacated. When the judgment or order appoint- ing an executor, or administrator, or guardian. Is reversed on appeal, for error, and not for want of jurisdiction of the court, all lawful acts in administration upon the estate performed by such executor, or administrator, or guardian, if he have qualified, are as valid as if such judgment or order had been affirmed. En. March 11, 1872. Am'd. 1873-4, 340; 1880, 15. iSi APPEALS TO SUPERIOR COURTS. J§ 967-974 Prac. Act, sec. 359. En. April 29, 1S51. Am'd 1853, 277; 1854, 65; 1854, 73; 1865-6, 846. Gal. Kep. Cit. 42, 51; 42, 60; 42, 72. Appointment of executor, etc., j'ppeal from; Sec. 963, subd. 3. Restitution on reversal, etc.: Sec. 957. §§ 967, 968. No such sections. § 969. En. March 11, 1872. Am'd. 1872-4, 341; 1877-8, 104. Rep. 1880, 64. Cal. Rep. Cit 50, 294; 51, 565; 54, 228; 55, 211; 55, 311; 56, 408; 56. 409; 56, 410; 88, 314. Subd. 5—61, 163. Subd. 8—88, 315. S 970. En. March 11, 1872. Rep. 1880, 64. Cal. Rep. Cit. 61, 163. § 971. En. March 11, 1872. Am'd. 1873-4, 341. Rep. 1880, 64. CHAPTER III. [New chapter III, superseding the original chapter III, was adopted March 26, 1880, amendments 1880, p. 14.] APPEALS TO SUPERIOR COURTS. § 974. Api)eaJ from judgment of Justice's or police court. § 975. Appeal on questions of law, statement. § '/IS. Appeal on questions of fact, or law and fact. § 977. Transmission of papers to appellate court. § 978. Undertaking on appeal. § 979. Stay of proceedings on filing undertaking. § 9S0. Power of superior court on appeal. § 974. Appeal from judgment of justice's or police court. Any party dissatisfied with a judgment rendered in a civil action in a police or justice's court, may appeal therefrom to the superior court of the county, at any time within thirty days after the rendition of the judgment. The appeal is taken by filing a notice of appeal with the justice or judge, and serving a copy on the adverse party. The notice must state whether the appeal is taken from the whole or a part of the judgment, and if from a part. 8§ 975, 978 APPEALS TO SUPERIOR COURTS. M4 what part, and whether the appeal Is taken on questions of law or fact, or both. En. March 11, 1872. Am'd. 1880, 15. Cal. Rep. Clt. 50, 510; 58, 178; 60, 803; 68, 25; 70, 528; 71, 551; 72, 38; 79, 104; 86, 75; 88, 465; 88, 466; 90, 371; 102, 180; 119, 439; 119, 440. Prac. Act, sec. 624. En. April 29, 1851. Am'd. 1853, 280; 1854, 70; 1854, 73. Cal. Rep. Clt. 9, 573. Prac. Act, sec. 640. En. April 29, 1851. Notice of appeal, service on adverse party: See eeos. 1010 et seq. § 975. Appeal on questions of law, statement. When a party appeals to the superior court on questions of law alone, he must, within ten days from the rendition of judgment, prepare a statement of the case and file the same with the justice or judge. The statement must con- tain the grounds upon which the party intends to rely on the appeal, and so much of the evidence as may be neces- sary 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 statement and amendments must be settled by the justice or judge, and if no amend- ment be filed, the original statement stands as adopted. The statement thus adopted, or as settled by the Justice or judge, with a copy of the docket of the justice or judge, and all motions filed with him by the parties during the trial, and the notice of appeal, may be used on the hear- ing of the appeal before the superior court En. March 11, 1872. Am'd. 1880, 16. Cal. Rep. Clt. 59, 474; 63, 485; 103, 139; 124, 470. Prac. Act. sec. 625. En. April 29, 1851. Rep. 1853, 280. En. 1854, 70. Am'd. 1855, 198. Cal. Rep. Cit. 8, 518; 9, 573; 19, 80. Settlement of statement on appeal: Ante, sec. 650. § 976. Appeal on questions of fact, or law and fact. WTien a party appeals to the superior court on questions of fact, or on questions of both law and fact, no statement need be made, but the action must be tried anew in the superior court. En. March 11, 1872. Am'd. 1880, 16. Cal. Rep. Clt. 59, 474; 65, 494; 68, 246; 106, 593; 124, 469; 131. 218; 132, 701. £85 APPEALS TO SUPERIOR COURTS. 8 8 »", UTS Prac. Act, sec. 626. En. April 29, 1851. Am'd. 1853, 280; 1854, 70; 1854, 73. Cal. Rep. Cit. 8, 518. Conduct of trial: Post, sec. 980. § 977. Transmission of papers to appellate court. Upon receiving the notice of appeal, and on paj-raent of the fees of the Justice or Judge, payable on appeal and not Included in the Judgment, and filing and undertaking as required in the next section, and after settlement or adop- tion of statement, if any, the Justice or Ju-dge must, within five days, transmit to the clerk of the superior court, if the appeal be on questions of law alone, a certified copy of hla 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 certi- fied copy of his docket, the pleadings, all notices, motions, and all other papers filed in the cause, the notice of appeal, and the undertaking filed; and the Justice or Judge may be compelled by the superior court by an order entered upon motion, to transmit such papers, and may be fined for neglect or refusal to transmit th3 sam6. ^A certified copy of such order may be served on the justice or Judge by the party or his attorney. In tne superioi court, either party may have the benefit of all legal objection? made In the Justice's or polIc# court. Bn. March 11. 1872. Am'd. 1880, 16; 1897, 210. Cal. Eep. Cit. 59, 474; 8S, 432; 102, 179; 102, 180; 102, 183; 124, 469. Prac. Act, sec. 627. En. April 29, 1851. Am'd. 1853, 280; 1854, 70; 1854, 73; 1855, 198. Cal. Rep. Cit. 5, 90; 8, 518; 9, 18; 9, 572; 9, 573; 25, 211; 102, 181. § 978. Undertaking on appeal. An appeal from a jus- tice 's or police court is not effectual for any purpose, un- less an undertaking be filed with two or more sureties in the sum of one hundred dollars for the payment of the costs on the appeal; or, if a stay of proceedings be claimed, in a sum equal to twice the amount of the judgment, in- eluding costs, when the judgment is for the payment of money; or twice the value of property, including costs, when the judgment is for the recovery of specific personal Code Civil Proe.— 25. i 978 APPEALS TO S^CPERIOR COURT6, E8« property, and must be conditioned, when the action io for the recovery of money, that the appellant will pay the amount of the judgment appealed from, and all costs, if the appeal be withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against him In the action In the superior court. When the ac- tion Is for the recovery of or to enforce or foreclose a lien on specific personal property, the undertaking must be con- ditioned 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 superior court, and will obey any order made by the court therein. When the judgment appealed from directs the delivery of possession of real property, the execution of the same cannot be stayed unless a writ- ten 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 appeal be dismissed or withdrawn, or the judg- ment affirmed, or judgment be recovered against him in the action in the superior court, 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; or that he will pay any judgment and costs that may be recovered against him In said action in the superior court, not ex- ceeding a sum to be fixed by the justice of the court from which the appeal Is taken, and which sum must be speci- fied in the undertaking. 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 re- covery of specific personal property, with the justice or Judge, is equivalent fo the filing of the undertaking, and In such cases, the justice or judge must transmit the money to the clerk of the superior court, to be by him paid out on the order of the court. The adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they or other sureties justify before the justice or judge within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal must be regarded as if no such undertaking had been given. En. March 11, 1872. Am'd. 1880, 16. Cal. Rep. Clt. 47, 606; 56, 83; 58, 178; 61, 338; 67, 69; 67, 115; 68, 25; 71, 551; 86. 75; 8G. 76; 88, 465; 88, 466; 90, 870; 90, 872; 98, 43; 102, 180; 106, 48; 113, 442; 147, 178; 147, 174. SS7 APPEALS TO SUPERIOR COURTS. 5§ 979, 92J Prac. Act, sec. 628. En. April 29. 185L Am'd. 1853, 280; 1854, 70; 1854, 73; 1855, 198; 1860, 305. Cal. Rep. Cit 9, 573; 32, 50. Undertaking on appeal: Compare sec 941, ante. Sureties, justification: Ante, sec 948; qualification: Post, Bee 1057. § 979. Stay of proceedings on filing undertaking. If an execution be issued on the filing of the undertaking stay- ing proceedings, the justice or judge must, by order, direct the officer to stay all proceedings on the same. Such offi- c«^r must, upon payment of his fees for services rendered on the execution, thereupon lelinquish all property levied up- on, and deliver the same to the judgment debtor, to- gether 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. En. March 11, 1872. Am'd. 1880, 17. Cal. Rep. Cit. 56, 84; 58, 179; 90, 370; 98, 44; 136, 184. Prac. Act, sec. 629. En. April 29, 1851. § 980. Powers of superior court on appeal. Upon an appeal heard upon a statement of the case, the superior court may review all orders affecting the judgment ap- pealed from, and may set aside, or confirm, or modify any or all of the proceedings subsequent to and dependent upon such judgment, and may, if necessary or proper, order a new trial. When the action is tried anew on appeal, the trial must be conducted in all respects as other trials in the superior court. The provisions of this code as to changing the place of trial, and all the provisions as to trials in the superior court, are applicable to trials on ap- peal in the superior court. For a failure to prosecute an appeal, or unnecessary delay In bringing it to a hearing, the superior court, after notice, may order the appeal to be dismissed, with costs; and if it appear to such court that the appeal was made solely for delay, it may add to the costs such damages as may be just, not exceeding twenty-five per cent of the judgment appealed from. Judgments rendered in the superior court on appeal shall have the same force and effect, and may be enforced in the same manner, as judgments in actions commenced in the superior court. En. March 11, 1872. Am'd. 1880, 17. Cal. Rep. Cit. 50. 510; 59. 475; 65, 45; 65. 494; 66. 388; 71, 557; 71, 582; 77, 307; 84, 9; 86, 432; 94, 356; 119, 441; 124, 473. I 980 REPEAL, OF CERTAIN CHAPTERS. SSS Prac. Act, sec. 367. En. April 29, 1851. Am'd. 1854, 66. CaL Rep. Cit 8, 518; 9, 573; 40, 647. Amendments: Ante, sec. 473. Trial de novo: See ante, sec 97S. New trial: Ante. sees. 656 et seq. The foregoing sections end chapter 8, which, with chapter 2 of title 13 of part 2, was entirely amended, and the foregoing chapters, 2 and 3, adopted as substitutes there- for, by act approved March 26, 1880; Amendments 1880, 14 (Ban. ed. 52); took effect immediately; repealed all acts and parts of acts in conflict therewith. CHAPTERS rV, V. Chapters 4 and 5, of title 13 of part 2, and each and every section thereof, relating to appeals from probate courts and appeals to county courts, were repealed by act approved April 15, 1880; Amendments 1880, 64 (Ban. eaid out of the county treasury. En. March 11, 1872. CaL Rep. Cit 106, 205; 116, 494. No security required of county: Post, sec. 1058. a 1046-1011 GENERAL PROVISIONS. §» CHAPTER VII, GENERAL, PROVISIONS. 6 1045. Lost papers, how supplied. I 1046. Papers without the title of the action, or with defective title, may be valid. § 1047. Successive actions on the same contract, etc. § 1048. Consolidation of several actions into one. § 1049. Actions, when \1ecmed pending. 8 1050. Actions to determine adverse claims, and by sureties. 8 1051. Testimony, when to be taken by the clerk. B 1062. The clerk must keep a register of actions. 5 1053. Two of three referees, etc., may do any act. 5 1054. The time within an act Is to be done may be extended. § 1065. Actions against a sheriff for official acts. § 1056. Corporations may become sureties on undertakings and bonds. I 1057. Undertakings mentioned In this code, requisites of. S 1058. People of state not required to give bonds when state is a party. 8 1059. Surety on appeal substituted to rights of judgment creditor. § 1045. Lost papers, how supplied. If an original plead- ing or paper be lost, the court may authorize a copy thereof to be filed and used instead of the original. En, March 11. 1872. Cal. Rep. Cit. 93, 608; 110, 190; 137, 272, Lost certificates of deposit, statute relating to actions on: See post, Appendix, title Statute of Limitations. 6 1046. Papers without the title of the action, or with defective title, may be valid. An affidavit, notice, or other paper, without the title of the action or proceeding In which It Is made or with a defective title, is as valid and effectual for any purpose as if duly entitled, if it intelligibly refer to such action or proceeding. En. March 11, 1872. Cal. Rep. Cit. 67, 122; 95, 417; 100, 335; 101, 122. Prac. Act, sec. 531. En. April 29, 1851. Cal. Rep. Cit. 3, 97. S 1047. Successive actions on the same contract, etc. Successive actions may be maintained upon the same con- tract or transaction, whenever, after the former action, a new cause of action arises therefrom. En. March 11, 1872. Prac. Act, sec. 525. En. April 29, 1851. jLctlon defined: Ante, sec. 22. 407 GENF:RAL provisions. 89 104S-1O53 § 1048. Consolidation of sevepal actions Into one. "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 or- der the actions to be consolidated. En. March 11, 1872. Cal. Rep. Cit. 66, 73; 80, 324; 126, 650. Prac. Act, sec. 526. En. April 29, 1851. § 1049. Actions, when deemed pending. An action Is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment Is sooner satis- fied. En. March 11, 1872. Cal. Rep. Cit. 55, 320; 67, 331; 89, 541; 91, 431; 97, 550; 97, 552; 99, 88; 99, 89; 99, 475; 99, 476; 99, 627; 100, 42; 100, 646; 110, 504; 113, 63; 119, 257; 120, 24; 123, 23; 124, 428; 125. 89; 129, 650; 130, 599; 131, 646; 134, 468; 134, 469; 137, 144; 137, 145; 143, 113; 143, 226; 143, 235; 143, 633. 5 1050. Actions to determine adverse claims, and by sureties. An action rray 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 sat- isfy a debt due to the other, for which plaintiff is bound aa a surety. En. March 11, 1872. Cal. Rep. Cit. 92, 420; 96. 101; 117, 436; 121, 351; 132, 158; 136, 29; 187, 114; 138, 559; 145, 193. Prac. Act, sec. 527. En. April 29, 1861. Cal. Rep. Cit. 5, 84; 24, 165; 24, 166. Quieting title to realty: Ante, sees. 738 et seq. Surety may compel principal to perform obligation: See ClV. Code, sec. 2846. § 1051. Testimony, when to be tai3. § 110.3. Where and when Issued. * § 1104. Writ may be alternative or peremptory. Form of. 8 1105. Certain provisions of the preceding chapter appUcabU. § 1102. Prohibition defined. The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, when such proceedings are without or in excess of the jurisdic- tion of such tribunal, corporation, board, or person. En. March 11, 1872. Am'd. 1881, 20. Cal. Rep. Cit. 47, 82; 47, 585; 53, 292; 54, 88; 57, 553; 57, 554; 58, 323; 59, 662; 66, 27; 68, 402; 69, 108; 84, 389; 92, 251; 110, 58; 122, 216; 126, 221; 146, 310. Mandate: Ante, sees. 1084 et seq. 8 1103. Where and when issued. It may be Issued by any court except police or justices' courts, to an Inferior tribunal or to a corporation, board, or person, In all cases where there Is not a plain, speedy, and adequate remedy In the ordinary course of law. It Is issued upon affidavit, on the application of the person beneficially Interested. En. March 11, 1872. Cal. Rep. CIt. 58, 324; 59, 663; 66, 27; 69, 108; 84, 889; 85, 50; 90, 103; 92, 251; 108, 305; 110, 58; 122, 216; 133, 365; 137, 109. Seal necessary to a writ: Ante, sec. 153. § 1104. Writ may be alternative or peremptory. Form of. The writ must be either alternative or peremptory. The alternative writ must state generally the allegation against the party to whom it Is directed, and command such I>arty to desist or refrain from further proceedings In the action or matter specified therein, until the further order of the court from which it is issued, and to show cause before such court, at a specified time and place, why such party should not be absolutely restrained from any further pro- ceedings in such action or matter. The peremptory writ must be In a similar form, except that the words requiring I§ 1105-1110 RULKS OF PUACTICE. 422 the party to show cause why he should not be absolutely restrained, etc., must be omitted, and a return day inserted. En. March 11, 1872. Compare sec. 1087. § 1105. Certain provisions of the preceding chapter ap- plicable. The provisions* of the preceding chapter, except of the first four sections thereof, apply to this proceeding. En. March 11, 1872. Cal. Rep. Cit. 88, 267. CHAPTER rV. WRITS OF REVIEW, MANDATE, AND PROHIBITION MAT ISSUTS AND BE HEARD AT- CHAMBERS. 5 1108. Writs of review, mandate, axid prohibition may issue and be heard at chambers. § 1108. Writs of review, mandate, and prohibition may issue and be hard at chambers. Writs of review, man- date, and prohibition issued by the supreme court, or by a superior court, may, in the discretion of the court issuing the writ, be made returnable and a hearing thereon be had at any time. En. March 11, 1872. Am'd. 1873-4, 346; 1880, 74. Cal. Rep. Cit. 45, 243. Powers of judges at chambers: Ante, sees. 165, 166. CHAPTER V. RULES OF PRACTICE AND APPEALS. f 1109. Certain provisions of part two applicable. § 1110. Same. § 1109. Certain provisions of part two applicable. Ex- cept as otherwise provided in this title, the provisions of part two of this code, are applicable to, and constitute the rules of practice in the proceedings mentioned in this title. En. March 11, 1872. Cal. Rep. Cit. 117, 6; 141, 97. See ante, sees. 307 et seq. § 1110. Same. The provisions of part two, of this code, relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this title, apply to the proceedings mentioned in this title. En. March 11, 1872. See ante, sees. 656 et seq.; and ante, sees. 936 et seq. «23 CONTISSTING CERTAIN ELECTIONS. S m^ TITLE II. OF CONTESTING ELECTIONS. 5 1111. Who may contest, and grounds of contest. § 1112. Irregularity and Improper conduct of judges, when to annal elections. § 1113. When not to. § 1114. Illegal votes, when not to vitiate election. § 111.5. Proceedings on contest. § 1115. Statement of cause of contest in Illegal voting. 6 1U7. Statement of cause of contest; want of form not to vitlat*. § 1118. Superior Judge to hold special session for trial of contest, § 1119. Clerk to Issue citation to respondent. 5 1120. Witnesses; attendance of, how enforced. § 1121. Power of court. Adjournment of court, § 1122. Rules to govern court in trial of contest. I 1123. Court may declare who was elected, § 1124, Fees of officers and witnesses. (Repealed.) § 1125. Costs. § 1126. Appeal, § 1127. When election void and ofHce vacant. Gen. Cit. to Title.— Cal. Rep. Cit. 125, 528. § 1111. Who may contest, and grounds of contest. Any elector of a county, city and county, city, or of any political subdivision of either, may contest the right of any person declared elected to an office to be exercised therein, for any of the following causes: 1. For malconduct on the part of the board of judges, or any member thereof. 2. "When the person whose right to the office is contested was not, at the time of the election, eligible to such office. 3. Wben the person whose right is contested has given to any elector or inspector, judge, or clerk of the Election, any bribe or reward, or has offered any such bribe or re- ward for the purpose of procuring his election, or has com- mitted any other offense against the elective franchise, de- fined in title four, part one, of the Penal Code. 4. On account of illegal votes. En. March 11, 1872. Am'd. 1875-6, 100. Cal. Rep, Cit 46, 401; 46, 403; 64, 95; 83, 71; 83, 74- 87, 124; 87, 125; 100, 201; 114, 96; 118, 400; 129, 327- 134, 152; 136, 266; 138, 152; 139, 5; 141, 413; 141, 415; 141, 559; 142, 498; 142, 592; 143, 470; 143, 472; 143, 546; 143, 547; 14G, 329. Subd. 1—65, 59; 83, 73; 111, 420. Subd. 2—118, 395; 145, 692. Subd. 4—104, 661; 127, 31: 128, 284. §§ 1112-1115 CONTESTING CKRTAIN ELECTIONS. 424 Malconduct of judges: Post, sees. 1112, 1113. Legislature, contesting election of members of: Pol. Code, sec. 273; of governor, etc.: Id., sec. 288. Office, usurpation of, etc.: Ante, sees. 802 et seq. Offense against elective franchise: Pen. Code, sees. 41 et seq. § 1112. Irregularity and improper conduct of judges, when to annui elections. No irregularity or improper conduct in the proceedings of the judges, or of any of them, is such malconduct as avoids an election, unless the irregu- larity or improper conduct is such as to procure the person whose right to the office is contested to be declared elected, when he had not received the highest number of legal votes. En. March 11. 1872. Cal. Rep. Cit 83, 78; 108, 111; 124, 13; 136, 402; 143, 342; 143. 386; 143, 546; 143, 547; 143, 549. § 1113. When not to. When any election held for an office exercised in and for a county is contested on account of any malconduct on the part of the board of judges of any township election, or any member thereof, the election cannot be annulled and set aside upon any proof thereof, unless the rejection of the vote of such township or town- ships would change the result as to such office in the re- maining vote of the county. En. March 11, 1872, § 1114. Illegal votes, when not to vitiate election. Nothing in the fourth ground of contest specified in sec- tion eleven hundred and eleven, is to be so construed as to authorize an election to be set aside on account of illegal votes, unless it appear that a number of illegal votes has been given to the person whose right to the office is con- tested, which, if taken from him, would reduce the number of his legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to such other person. En. March 11, 1872. Cal. Rep. Cit. 65, 286; 83, 73; 128, 284; 143, 547. § 1115. Proceedings on contest. V/hen an elector con- tests the right of any person declared elected to such office, he must, within forty days after the return day of the elec- 425 CONTESTING CERTAIN ELECTIONS. § ij llliMlIS tion, file with the county clerk a written statement, setting forth specifically: 1. The name of the party contesting such election, and that he is an elector of the district, county, or township, as the case may be, in which such election was held; 2. The name of the person whose right to the office is contested; 3. The office; 4. The particular grounds of such contest; — Which statement must be verified by the affidavit of the contesting party, that the matters and things therein contained are true. En. March 11, 1872. Cal. Rep. Cit. 46, 403; 58, 207; 58, 208; 65, 59; 111, 130; 121, 479; 141, 274; 142, 504; 143, 485; 146, 329. Statement of contestant: Post, sees. 1116, 1117. § 1116. Statement of cause of contest in illegal voting. When the reception of illegal votes is alleged as a cause of contest. It is sufficient to state generally that In one or more specified voting precincts illegal votes were given to the person whose election is contested, which, if taken from him, will reduce the number of his legal votes below the number of legal votes given to some other person for the same office; but no testimony can be received of any illegal votes, unless the party contesting such election deliver to the opposite party, at least three days before such trial, a written list of the number of illegal votes, and by whom given, which he intends to prove on such trial; and no testimony can be received of any illegal votes except such as are specified in such list. Bn. March 11, 1872. Am'd. 1880, 74. Cal. Rep. Cit 51, 516; 58, 211; 105, 182; 121, 534; 136, 4; 136, 277; 142, 504. § 1117. Statement of cause of contest; want of form not to vitiate. No statement of the grounds of contest will be rejected, nor the proceedings dismissed by any court for want of form, if the grounds of contest are alleged with such certainty as will advise the defendant of the particular proceeding or cause for which such election is contested. En. March 11. 1872. CaL Rep. Cit. 141, 275; 143, 21; 143, 485; 145, 318. § 1118. Superior judge to hold special session for trial of contest. Upon the statement being filed, the county §§ 1119- U2 CONTESTING CERTAIN ELECTIONS. t» clerk must inform the superior court of the county thereof, which shall thereupon order a special session of such cou.-t to be held at the courtroom, on some day to be named by it, not less than ten nor more than twenty days from the date of such order, to hear and determine such contesteJ election. En. March 11, 1872. Am'd. 1880, 75. Cal. Rep. Cit. 119, 614; 119, 616; 143, 21. § 1119. Clerk to issue citation to respondent.. The clerk shall thereupon issue a citation for the person, whose right to the office is contested, to appear at the time and place specified in the order, which citation must bo deliv- ered to the sheriff, and served either upon the party in per- son, or, if he cannot be found, by leaving a copy thereof at the house where he last resided, at least five days before the time so specified. En. March. 11, 1872. AmU 1880, 75. § 1120. Witnesses; attendance of, how enforced. The clerk must issue subpoenas for witnesses at the request of either party, which must be served as other subpoenas; and the superior court shall have full power to issue attach- ments to compel the attendance of witnesses who have been subpoenaed to attend. En. March 11, 1872. Am'd. 1880, 75. Subpoenas, issuance, service, etc: Post, sees. 1985-1987; also see post, sees. 1988-1990; disobedience, penalty, etc.: Post, sees. 1991-1992. Compelling attendance of witnesses: Post, sees. 1993 et seq. § 1121. Power of court. Adjournment of court. The court must meet at the time and place designated, to de- termine such contested election, and shall have all the powers necessary to the determination thereof. It may adjourn from day to day until such trial is ended, and may also continue the trial, before its commencement, for any time not exceeding twenty days, for good cause shown by either party upon aflBdavit, at the costs of the party apply- ing for such continuance. En. March 11, 1872. Cal. Rep. Cit. 119, 614; 119, 617. § 1122. Rules to govern court in trial of contest. The court must be governed., in the trial and determination of such contested election, by the rules of law and evidence 427 CONTESTING CERTAIN ELECTIONS. §§ lUS-ll'JB governing the determination of questions of law and fact, so far as the same may be applicable; and may dismiss the proceedings if the statement of the cause, or causes of the contest is [in] sufficient, or for want of prosecution. After hearing the proofs and allegations of the parties, the court must pronounce judgment in the premises, either confirm- ing or annulling and setting aside such election. En. March 11, 1872. Cal. Eep. Cit. 65, 286; 121, 479; 141, 563; 142, 373. § 1123. Court may declare who was elected. If in any such case it appears that another person than the one re- turned has the highest number of legal votes, the court must declare such person elected. En. March 11, 1872. Cal. Eep. Cit. 128, 284; 140, 651; 141, 416; 141, 561; 141, 563. § 1124. Fees of officers and witnesses. (Eepealed.) En. March 11, 1872. Eep. 1880, 76. § 1125. Costs. If the proceedings are dismissed for in- sufficiency, or want of prosecution, or the election is by the court confirmed, judgment must be rendered against the party contesting such election, for costs, in favor of the party whose election was contested; but if the election is annulled and set aside, judgment for costs must be ren- dered against the party whose election was contested, in favor of the party contesting the same. Primarily, each party is liable for the costs created by himself, to the officers and witnesses entitled thereto, which may be col- lected in the same manner as similar costs are collected in other cases. En. March 11, 1872. Am'd. 1880, 75. Cal. Eep. Cit. 65, 286; 127, 33; 143, 549. Costs, in special proceedings: Ante, sees. 1022, subd. 4, 1024; generally: Ante, sees. 1021 et seq. § 1126. Appeal. Either party, aggrieved by the judg- ment of the court, may appeal therefrom to the supreme court, as in other cases of appeal thereto from the superior eourt. En. March 11, 1872. Am'd. 1880, 75. Cal. Eep. Cit. 79, 483; 114, 98; 125, 528; 146, 325. Appeals to supreme court: Ante, sec. 963; appeals, gen- erally: Ante, sees. 936 et seq. §§ 1127, 1132 CONFESSION OF ."nUDGMENT. 43 § 1127. When election void and office vacant. When- ever an election is annulled or set aside by the judgment of the superior court, and no appeal has been taken within ten days thereafter, the commission, if any has issued, is void, and the office vacant. En. March 11, 1872. Am'd. 1S80, 76. Cal. Rep. Cit. Ill, 420; 114, 96; 129, 327; 134, 152. Subd. 1—111, 42.0. TITLE III. OP SUMMARY PROCEEDINGS. Chapter I. Confession of Judgment V/ithout Action, §§ 1132-1135. U, Submitting of a Controversy Without Action, §§ 1138-1140. ni. Discharge of Persons Imprisoned on Civil Pro- cess, §§ 1143-1154. IV. Summary Proceedings for Obtaining Posses- sion of Real Property in Certain Cases, § § 1159-1179. CHAPTER L CONFESSION OF JUDGMENT WITHOUT ACTION. { 1132. Judgment may be confessed for debt due or contingent lia- bility. ( 1133. Statement In writing and form thereof. § 1134. Piling statement and entering judgment. 5 1136. Kow, In justices' courts. § 1132. Judgment may "be confessed for debt due or con- tingent liability. A judgment by confession may be en- tered without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter. Such judgment may be entered in any court having jurisdiction for like amounts. En. March 11, 1872. Cal. Eep. Cit. 134, 672. Prac. Act, see. 374. En. April 29, 1851. Cal. Rep. Cit. 18, 581. Judgment by confession, in justice's court: Sees. 112, Bubd. 6, 114, 889, ante, 1135, post. 429 CONFESSION OP JtJDGMBNT. §§ 113a-U35 § 1133. Statement in writing and form thereof. A statement in writing must be made, signed by the defend- ant, and verified by his oath, to the follov/ing effect: 1. It must authorize the entry of judgment for a specified sum; 2. If it be for money due, or to become due. It must state concisely the facts out of which it arose, and show that the sum confessed therefor is Justly due, or to become due; 3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and show that the sum confessed therefor does not exceed the same. En. Marcii 11, 1872. Prac. Act, sec. 375. En. Ap.il 29, 1851. CaL Rep. Cit. 18, 581. § 1134. Filing statement and entering judgment. The statement must be filed with the clerk of the court in which the judgment is to be entered, who must indorse 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 indorsed, there- upon becomes the judgment-roll. En. March 11, 1872. Prac. Act, sec. 376. En. April 29, 1851. Cal. Rep. Cit. 18, 581. § 1135. How, in justice's conrts. In a justice's court, where the court has authority to enter the judgment, the statement may be filed with the justice, who may there- upon enter in his docket a judgment of his court for the amount confessed, with three dollars costs. If a transcript of such judgment be filed with the county clerk, a copy of the statement must be filed with it. En. March 11, 1872. Justice's court: Ante, sees. 112, subd. 6, 114, 889. §§ imilBl DISCHARGE. * 432 cernlng his estate and property and effects, and the dis- posal thereof, and his ability to pay the judgment for which he is committed; and such Judge may also hear any other legal and pertinent evidence that may be pro- duced by the debtor or the creditor. En, March 11, 1872. § 1147. Interrogatories may be in writing. The plain- tiff In the action may, upon such examination, propose to the prisoner any interrogatories pertinent to the inquiry, and they must, If required by him, be proposed and an- swered In writing, and the answer must be signed and Bworn to by the prisoner. En. March 11, 1872. S 1148. Oath to be administered. If, upon the examina- tion, the judge is satisfied that the prisoner Is entitled to his discharge, he must 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 dollars, 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 design to secure the same to my use, or to hinder, delay, or defraud my creditors, so help me God." En. March 11, 1872. Cal. Rep. Cit. 96, 234. § 1149. Order of discharge. After administering the oath, the judge must issue an order that the prisoner be discharged from custody, and the officer, upon the service of such order, must discharge the prisoner forthwith, if he be imprisoned for no other cause. En. March 11, 1872. § 1150. If not discharged, prisoner may again applVi when. If such judge does 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 must thereupon be had. En. March 11, 1872. § 1151. Discharge final. The prisoner, after being so discharged, Is forever exempted from arrest or imprison- ment for the same debt, unless he be convicted of having willfully sworn falsely upon his examination before the 483 DISCHARGE. 55 1152-1164 Judge, or In taking the oath before prescribed. En. Marcb 11, 1872. Cal. Rep. CIt. 96, 234. 8 1152. Judgment remains in force. The judgment against any prisoner who is discharged remains In full force against any estate which may then or at any time afterward belong to him, and the plaintiff may take out UOCEi3DiNGS. § H^ oecvpant of auy lands, unlawfully enters upon real prop- erty, and who, after demand made for the surrender there- of, for the period of five days refuses to surrender the same to such former occupant. The occupant of real property, within the meaning of this subdivision, is one who within five days preceding such unlawful entry, was in the peaceable and undisturbed possession of such lands. En. March 11, 1872. Cal. Rep. Cit. 50, 317; 51, 543; 53, 674; 60, 574; 76, 627; 77, 256; 83, 97; 107, 301; 137, 605; 138, 420. Subd. 2 —51, 533; 76, 133; 83, 100; 114, 346; 114, 347. § 1161. Unlawful detainer defined. A tenant of real property, for a term of less than life. Is guilty of unlawful detainer: 1. When he continues in possession, in person or by sub- tenant, of the property, or any part thereof, after the ex- piration of the terra for which it is let to him, without the permission of his landlord, or the successor in estate of his landlord, if any there be; but In case of a tenancy at will it must first be terminated by notice, as prescribed in the Civil Code. 2. "When he continues in possession, in person or by sub- tenant, without the permission of his landlord, or the suc- cessor in estate of his landlord, if any there be, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' notice, in writing, requiring its payment stating the amount which is due, or possession of the property, shall have been served upon him and if there is a subtenant in actual occupation of the premises, also upon such subten- ant. Such notice may be served at any time within one year after the rent becomes due. In all cases of tenancy upon agricultural lands, where the tenant has held over and re- tained possession for more than sixty days after the ex- piration of the term without any demand of possession or notice to quit by the landlord, or the successor in estate of his landlord, if any there be, he shall be deemed to be holding by permission of the landlord, or the successor in estate of his landlord, if any there be, and shall be en- 8 liei SUMMARY PROCEEDINGS. 430 titled to hold under the terms of the lease for another full year, and shall not be guilty of an unlawful detainer dur- ing said year, and such holding over for the period afore- said shall be taken and construed as a consent on the part of a tenant to hold for another year. 3. When he continues in possession, in person or by sub- tenant, after a neglect or failure to perform other condi- tions or covenants of the lease or agreement under which the property is held, including any covenant not to assign or sublet, than the one for the payment of rent, and three days' notice, in writing, requiring the performance of such conditions or covenants, or the possession of the property, shall have been served upon him, and if there is a' subtenant in actual occupation of the premises, also, upon such sub- tenant. Within three days after the service of the notice, the tenant, or any subtenant in actual occupation of the premises, or any mortgagee of the term, or other person interested in its continuance, may perform the conditions or covenants of the lease or pay the stipulated rent, as the case may be, and thereby save the lease from forfei- ture; provided, if the conditions and covenants of the lease, violated by the lessee, cannot afterward be per- formed, then no notice, as last prescribed herein, need be given to said lessee or his subtenant, demanding the per- formance of the violated conditions or covenant of the lease. A tenant may take proceedings, similar to those pre- scribed in this chapter, to obtain possession of the prem- ises let to a subtenant, in case of his unlawful detention of the premises underlet to him. 4. Any tenant or subtenant assigning or subletting or committing waste upon the demised premises, contrary to the conditions or covenants of his lease, thereby term- inates the lease, and the landlord, or his successor in es- tate, shall upon service of three days' notice to quit upon the person or persons in possession, be entitled to resti- tution of possession of such demised premises under the provisions of this chapter. En. March 11, 1872. Am'd. 1873-4, 346; 1875-6, 101; 1877-8, 104; 1877-8, 106. Rep. 1905, 29. En. 1905, 29. Cal. Rep. Cit. ^2, 472; 56, 130; 63, 49; 63, 52; 63, 69; 66, 446; 66, 447; 68, 506; 71, 536; 79, 442; 84, 422; 437 SUMMARY rROCEEDINGS. §§ 1162-U&1 § 1162. Service of notice. The notices required by the preceding section may be served either: 91, 597, 98. 425; 132, 135; 137, 605; 138, 78; 138, 284. Subd. 1—79, 442; 106, 221. Subd. 2—60, 374; 107, 112; 141, 556; 145, 557. Subd. 3—63, 69; 139, 659; 139. 660. 1. By delivering a copy to the tenant personally; or, 2. If he be absent from his place of residence, and from his usual place of business, by leaving a copy with some person of suitable age and discretion at either plaxie, and sending a copy through the mail addressed to the tenant at his place of residence; or, 3. If such place of residence and business cannot be ascertained, or a person of suitable age or discretion there cannot be found, then by affixing a copy in a conspicuous place on the property, and also delivering a copy to a per- son there residing, if such person can be found; and also sending a copy through the mail addressed to the tenant at the place where the property is situated. Service upon a subtenant may be made in the same manner. En. March 11, 1872. Am'd. 1873-4, 347. Gal. Rep. Cit. 56, 129; 63, 52; 63. 611; 66, 447; 70, 446; 105, 19; 125, 617. § 1163. Jurisdiction of superior courts. The superior court of the county in which the property, or some part of it, is situated, shall have jurisdiction of proceedings under this chapter; provided, that justices' courts, within their respective townships, or cities, or cities and counties shall have concurrent jurisdiction with the superior courts in oases of forcible entry and detainer, when the rental value does not exceed twenty-five dollars per month, and when the whole amount of damages claimed does not exceed two hundred dollars. En. March 11, 1872. Am'd. 1880, 8. Cal. Rep. Cit. 130, 98; 130, 99. Concurrent jurisdiction of justices' court: Ante, sec. 113, subd. 1. § 1164. Parties defendant. No person other than the tenant of the premises and subtenant, if there be one, in the actual occui)ation of the premises when the complaint §§ 1165, 1166 SUMMARY PROCEEDINGS. ^S is filed, need be made parties defendant in the proceeding, nor shall any proceeding abate, nor the plaintiff be non- suited for the nonjoinder of any person who might have been made party defendant, but when it appears that any of the parties served with process, or appearing in the pro- ceeding, are guilty of Ihe offense charged, judgment must be rendered against him. In case a defendant has become a subtenant of the premises in controversy, after the ser- vice of the notice provided for by part two of section eleven hundred and sixty-one of this code, uiron the tenant of the premises, the fact that such notice was not served on each subtenant shall constitute no defense to the action. In case a married woman be a tenant, or a subtenant, her coverture shall constitute no defense; but in case her husband be not joined, or unless she be doing business as a sole trader, an execution issued upon a personal judgment against her can only be enforced against property on the premises at the commencement of the action. All persons vrtio enter the premises under the tenant, after the commencement of the suit, shall be bound by the judgment, the same as if he or they had been made party to the action. En. March 11, 1872. Am'd. 1873-4, 348; 1885, 129. Cal. Rep. Cit 122, 437. Parties plaintiff, and generally: Post, sec. 1165. § 1165. Parties generally. Except as provided in the preceding section the provisions of part two of this code, relating to parties to civil actions, are applicable to this proceeding. En. March 11, 1872. See sees. 367 et seq., ante. Parties defendant: Sec. 1164. § 1166. Complaint. When summons must be issued. The plaintiff, in his complaint, which shall be in writing, must set forth the facts en which he seeks to recover, and describe the premises with reasonable certainty, and may set forth therein any circumstances of fraud, force, or vio- lence which may have ax;companied the alleged forcible en- try or forcible or unlawful detainer and claim dama'ges therefor. In case the unlawful detainer charged be after de- fault in the payment of rent, the complaint must state the amount of such rent Upon filing the complaint, a summons must be issued thereon as in other cases, returnable at a day 439 SUMMARY PROCEEDINGS. S ^^ designated therein, wliich shall not be less than three days, nor more than twelve days from its date, except in cases when the publication of the summons is necessary, in which case the court or a judge or justice thereof, may order that the summons be made returnable at such time, as may be deemed proper, and the summons shall specify the return day so fixed. En. March 11, 1872. Am'd. 1873-4, 348; 1877-8, 107; 1880, 8. Complaint, generally: Sec. 426, ante. Damages: Sec. 1174. Amendment: Ante, sees. 472, 473. Verification: Sees. 446, ante, 1175, post. Parties: Ante, sees. 1164, 1165. § 1167. Summons, form and service of. The summons must state the parties to the proceeding, the court in which the same is brought, the nature of the action, in concise terms, and the relief sought, and also the return day, and must notify the defendant to appear and answer within the time designated, or that the relief sought will be taken against him. The summons must be directed to the defend- ant, and be served at least two days before the return day designated therein, and must be served and returned in the same manner as summons in civil actions is served and re- turned; provided, that if it appears to the court the defend- ant is concealing himself to avoid the service of summons and the defendant cannot be found at his place of residence or business, or if his place of residence or business cannot be ascertained, the court may order the summons to be served by affixing a copy thereof in a conspicuous place on the property involved in the action, and also delivering a copy to a person there residing, if such person can be found, and also sending a copy thereof through the mail addressed to the defendant at the place where the property is situated. Upon the return of any summons issued under this chapter, where the same has not, for any reason, been served, or not served in time, the plaintiff may have a new summons issued, the same as if no previous summons had Tjeen issued. En. March 11, 1872. Am'd. 1S73-4, 349; 1880, 8; 1905, 428. Cal. Rep. Cit. 49, 273. Service of summons, in civil action: Sees. 40C et seq. J§ UGS-U72 SUMMARY PROCEEDINGS. MB S 1168. Arrest. If the complaint presented establishes, to the satisfaction of the judge or justice, fraud, force, or violence, in the entry or detainer, and that the possession held is unlawful, he may make an order for the arrest of the defendant. En. March 11, 1872. Am'd. 1880, 9. CaL Rep. Cit 92, 371. Arrest, generally: Ante, sees. 478 et seq. § 1169. Judgment by default. If, at the time appointed, the defendant do not appear and defend, the court must enter his default, and render judgment in favor of the plaintiff, as prayed for in the complaint. En. March 11, 1872. Judgment by default, generally: Ante, sec. 585. § 1170. Defendant may appear, etc. On or before the day fixed for his appearance, the defendant may appear and answer or demur. En. March 11, 1872. Appearance, generally: Ante, sec. 1014. Answer — Scope of: Post, sec. 1172; verification: Post, sec. 1175; generally: Ante, sec. 437. § 1171. Trial by jury. Whenever an issue of fact is presented by the pleadings, it must be tried by a jury, unless such jury be waived as in other cases. The jury shall be formed in the same manner as other trial juries in the court in which the action is pending. En. March 11, 1872. Am'd. 1873-4, 349; 1880, 9. Trial by jury: Ante, sees. 600-628; issue of fact: Ante, sees. 590 et seq.; waiver: Ante, sec. 631. Formation of the jury: Ante, sees. 600-604. Justices' coTirts — Trials in: Ante, sees. 878-887. S 1172. Showing required of plaintiif in forcible entry or detainer. Of defendant. On the trial of any proceeding for any forcible entry or forcible detainer, the plaintiff shall only be required to show, in addition to the forcible entry or forcible detainer complained of, that he was peace- 441 SUMMARY PROCEEDINGS. |§ 1173, 1174 ably in the actual possession at the time of the forcible entry, or was entitled to the possession at the time of the forcible detainer. The defendant may show in his defense, that he or his ancestors, or those whose interest in such premises he claims, have been in the quiet possession thereof for the space of one whole year together next be- fore the commencement of the proceedings, and that his interest therein is not then ended or determined; and such showing is a bar to the proceedings. En. March 11, 1872. Cal. Rep. Cit. 60, 573; 60, 574; 67, 452; 69, 563; 77, 256; 107, 302; 114, 348; 114, 349; 125, 265; 138, 421. Practice: See post, sec. 1177. § 1173. Complaint must be amended in certain cases. "When, upon the trial of any proceeding under this chap- ter, it appears from the evidence that the defendant has been guilty of either a forcible entry, or a forcible or un- lawful detainer, and other than the offense charged In the complaint, the judge must order that such complaint be forthwith amended to conform to such proofs; such amendment must be made without any imposition of terms. No continuance shall be permitted upon account of such amendment, unless the defendant, by affidavit filed, shows to the satisfaction of the court good cause therefor. En. March 11, 1872. Am'd. 1885, 102. Cal. Rep. Cit. 125, 566. Continuance, generally: Ante, sec. 595. § 1174. Verdict and judgment. If, upon the trial, the •\:erdict of the jury, or, if the case be tried without a jury, the finding of the court be in favor of the plaintiff and against the defendant, judgment shall be entered for the restitution of the premises; and if the proceeding be for an unlawful detainer after neglect, or failure to perform the conditions or covenants of the lease or agreement under which the property is held, or after default in the pasonent of rent, the judgment shall also declare the for- feiture of such lease or agreement. The jury, or the court, if the proceeding be tried without a jury, shall also assess the damages occasioned to the plaintiff by any forcible entry, or by any forcible or unlawful detainer, J§ 1175, 1176 SUMMARY PROCEEDINGS. 442 alleged in the complaint and proved on the trial, and find the amount of any rent due, if the alleged unlawful de- tainer be after default in the payment of rent, and the judgment shall be rendered against the defendant guilty of the forcible entry, or forcible or unlawful detainer, for three times the amount of the damages thus assessed, and of the rent found due. When the proceeding is for an unlawful detainer after default in the payment of rent, and the lease or agreement under which the rent is payable has not by its terms expired, execution upon the judgment shall not be issued until the expiration of five days after the entry of the judgment, within which time the tenant, or any subtenant, or any mortgagee of the term, or other party interested in its continuance, may pay into court, for the landlord, the amount found due as rent, -with interest thereon, and the amount of the damages found by the jury or the court for the unlawful (letainer, and the costs of the proceeding, and thereupon the judgment shall be satisfied and the tenant be re- stored to his estate; but if payment, as here provided, be not made within the five days, the judgment may be enforced for its full amount, and for the possession of the premises. In all other cases the judgment may be en- forced immediately. En. March 11, 1872. Am'd. 1873-4, 249. Cal. Rep. Cit. 57, 192; 90, 501; 91, 598; 125, 5G6; 138, 283; 139, 142; 139, 143; 141, 623. Treble damages: See ante, sec. 735; Civ. Code, sec. 3345. Forfeiture, relief from: Post, sec. 1179. 8 1175. Verification of complaint and answer. The complaint and answer must be verified. En. March 11, 1872. Cal. Rep. Cit. 59, 481; 60, 375. 8 1176. Effect of an appeal upon the judgment. An appeal taken hy the defendant shall not stay proceedings npon the judgment, unless the judge or justice before whom the same was rendered so directs. En. March 11. 1872. Am'd. 1880, 9. 3 SUTVIMARY PROCEEDINGS. 5§ U77-U79 Cal. Rep. Cit. 71, 53G; 73, 641; 81, 227; 135, 661; 135, 6C2; 139, 141; 139, 143. Appeal as stay — Generally: Ante, sees. 946, 949. § 1177. Rules of practice. Except as otherwise pro- vided in this chapter, the provisions of part two, of this code, are applicable to, and constitute the rules of prac- tice in the proceedings mentioned in this chapter. En. March 11, 1872. Cal. Rep. Cit. 91, 598. For part two: See ante, sees. 307 et seq. § 1178. Appeals, how taken, etc. Provisions of part two of this code, relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this chapter, apply to the proceedings mentioned in this chapter. En. March 11, 1872. See ante, sees. 656 et seq., 930 et seq. § 1179. Relief against forfeiture of lease. The court may relieve a tenant against a forfeiture of a lease, and restore him to his former estate, in case of hardship, where application for such relief is made within thirty days after the forfeiture is declared by the judgment of the court, as provided in section one thousand one hun- dred and seventy-four. The application may be made by a tenant or subtenant, or a mortgagee of the term, or any person interested in the continuance of tho term. It must be made upon petition, setting forth the facts upon which the relief is sought, and be verified by the appli- cant. Notice of the application, with a copy of the peti- tion, must be served on the plaintiff in the judgment, who may appear and contest the application. In no case shall Ihe application be granted except on condition that full payment of rent due, or full performance of conditions or covenants stipulated, so far as the same is practicable, be made. En. Stats. 1873-4, 350. Am'd. 1880, 9. Cal. Rep. Cit. 139, 663. S 11S« LlENiS IN QENiiUiAU TITLE IV. OF THE ENFORCEMENT OF LIENS. Chapter I. Liens in General, § 1180. IL Liens of Mechanics and Others Upon Real Property, §§ 1183-1203. IIL Certain Liens for Salaries and Wages, §§ 1204-1207. CHAPTER L LIENS IN GENERAIj. § 1180. Definition of lien. § 1180. Definition of lien. A lien is a charge imposed upon specific property by which it is made security lor the performance of an act. En. March 11, 1872. Cal. Rep. Cit, 71, 73; 115, 179; 134, 131. Lien, definition of: Civ. Code, sec. 2872. Priority of liens: Civ. Code, sec. 2897. 446 LIENS OF MECHANICS, ETC. S USa CHAPTER II. LIENS OF MECHANICS AND OTHERS UPON REAL PROPERTT. § 1183. Mechanics' liens upon what. § 1183%. Building contracts, what provisions to contain. (Repealed.) § 1184. Contract price payable In installments. § 1185. What Interest in the land subject to the lien. § 1186. Effect of liens. § 1187. Claim of Hen to be filed in recorder's office. § 1188. Liens upon two or more pieces of property. Amount due from each to be designated. I 1189. Claim to be recorded. Fees of recorder. § 1190. Time of continuance of lien. § 1191. Lien upon lot for Improving. § 1192. At Instance of owner, what lield to be constructed. § 1193. Contractor; Hens for claims against. § 1194. Court to declare rank of liens. Deficiency to be docketed. § 1195. Any number of llenholders may join In action. § 1196. Attachment, etc., against materials. § 1197. Lien vioes not Impair right to proceed for recovery of the debt. § 1198. Rules of practice, g 1199. New trials and appeals. § 1200. Where contractor falls to perform contract. § 1201. Written consent to waive claims. § 1202. What forfeits Hens. § 1203. Bond of contractor to be filed. Gen. Cit. to Chap.— Cal. Rep. Cit. 54, 220; 87, 5D1; 68, 266. § 1183. Mechanics' Men upon what. Mechanics, materialmen, contractors, subcontractors, artisans, archi- tects, machinists, builders, miners, and all persons and laborers of every class performing labor upon or furnish- ing materials to be used In the construction, alteration, addition to, or repair, either in v>'hole or in part, of any building, wharf, bridge, ditch, flume, aqueduct, well, tun- nel, fence, machinery, railroad, wagon road or other structure, shall have a lien upon the property upon which they have bestowed labor or furnished materials, for the value of such labor done and materials furnished, whether at the instance of the owner, or of any other person acting by his authority or under him, as contractor or otherwise; and any person who performs labor In any raining claim or claims, or In or upon any real property worked as a mine, either in the development thereof or In ■working thereon by the subtractive process, has a lien upon the same, and the works owned and used by the owners for reducing the ores from such mining claim or claims, or real property so worked as a mine, for the work or labor done or materials furnished by each re- spectively, whether done or furnished at the Instance of § 1183 LIENS OF MECHANICS, ETC. *♦« the owner of such mining claim or claims or real property worked as a mine or of the building, or other improve- ment, or his agent; and every contractor, subcontractor, architect, builder, or other person having charge of any mining, or work and labor performed In and about such mining claim or claims, or real property worked as a mine, or the construction, alteration, addition to, or repair, either in whole or In part of any building or other improve- ment as aforesaid, or of such mining claim or claims, either as lessee or under a working bond or contract there- on, with the privilege of purchase, or otherwise, shall be held to be the agent of the owner for the purposes of this chapter. In case of a contract for the work between the reputed owner and his contractor, the liens shall extend to the entire contract price, and such contract shall operate as a lien in favor of all persons, except the contractor, to the extent of the whole contract price, and after all such Hens are satisfied, then as a lien ior any balance of the contract price in favor of the contractor. All such con- tracts shall be in writing when the amount agreed to be paid thereunder exceeds one thousand dollars, and shall be subscribed by the parties thereto; and the said con- tract, or a memorandum thereof, setting forth the names of all the parties to the contract, a description of the property to be affected thereby, together with a state- ment of the general character of the work to be done, the total amount to be paid thereunder, and the amounts of all partial payments, together with thfe times when such payments shall be due and paj'able, shall, before the work Is commenced, be filed in the office of the county recorder of the county, or city and county, where the property is situated, who shall receive one dollar for such filing; otherwise, they shall be wholly void, and no recovery shall be had thereon by either party thereto; and In such case, the labor done and materials furnished by all persons aforesaid, except the contractor, shall be deemed to have been done and furnished at the personal instance of the owner, and they shall have a lien for the value thereof. En. March 11, 1872. Am'd. 1873-4, 409; 1880, 63; 1885, 143; 1887, 152; 1899,. 33; 1903, 84. Cal. Rep. Clt. 54, 336; 55, 163; 55, 392; 56, 309; 61, 353; 61, 354; 66, 196; 66, 197; 66, 292; 70, 126; 70, 189; 70, 220; 70, 221; 74, 626; 74, 627; 75, 212; 76, 436; 78, 196; 78, 19<; 78, 201; 80, 278; 80, ol2; 81, 171; 81. 173; 81, 175; 81, 643; 81, 644; 81, 645; 82, 43; 447 LIENS OF MECHANICS, ETC. 5§ 1183»/4. 1184 82, 44; 82, 45; 82, 149; 82, 150; 83, 372; 86 24 86, 26; 87, 593; 88, 22; 88, 42; 89, 112;' 90, '578 90, 599; 90, 601; 90, 602; 91, 138; 91, 139; 91, 236 91, 237; 91, 561; 92, 237; 94, 207; 94, 208; 94, 234 94, 236; 94. 560; 95, 393; 95, 394; 95, 395; 96, 257 96, 442; 97, 11; 97, 188; 97, 257; 97, 266; 97, 645 97, 646; 98, 152; 98, 154: 99, 319; 99, 453; 99, 454 102, 140; 302, 142; 104, 31; 104, 507; 107, 60; 107, 64 107, 623; 109, 397; 109, 549; 110, 168; 110, 510; 111 293; 112, 291; 113, 123; 114, 492; 115, 343; 115, 661 117, 214; 117, 472; 117, 671; 117, 699; 118, 154; 120 95; 120, 96; 120, 184; 120, 285; 120, 456; 120, 457 121, 155; 122, 81; 123, 533; 124, 28; 126, 13; 126, 14 126, 567; 127, 10; 127, 25; 127. 41; 127, 43; 127, 44 127, 328; 128, 147; 128, 330; 128, 366; 129, 65; 129 394; 129, 395; 131, 144; 132, 495; 133, 118; 133, 172 133, 173; 133, 177; 133, 286; 133, 288; 136, 125; 138 833; 138. 430; 138, 614; 138, 616; 139, 380; 140, 504 141, 32; 142, 242; 144, 99; 144, 102; 146, 688; 147, 492 § 1183'^. Building contracts, what provisions must contain. (Repealed.) En. 1900-01, 817. Rep. 1903, 21. Cal. Rep. Cit. 142, 203. § 1184. Contract price payable In Installments. No part of the contract price shall, by the terms of any such contract, be made payable, nor shall the same or any part thereof be paid in advance of the commencement of the work, but the contract price shall, by the terms of the con- tract, be made payable in installments at specified times after the commencement of the work, or on the completion of specified portions of the work, or on the completion of the whole work; provided, that at least twenty-five per cent of the whole contract price shall be made payable at least thirty-five days after the final completion of the contract. No payment made prior to the time when the same Is due, under the terms and conditions of the con- tract, shall be valid for the purpose of defeating, diminish- ing, or discharging any lien In favor of any person, except the contractor, but as to such liens, such payment shall be deemed as if not made, and shall be applicable to such liens, notwithstanding that the contractor to whom it was paid may thereafter abandon his contract, or be or become Indebted to the reputed owner In any amount for damages or otherwise, for nonperformance of his contract § lis* LIENS OF MECnANICS, ETC. 443 or othei'wlse. As to all liens, except that of the contractor, the whole contract price shall be payable in money, and shall not be diminished by any prior or subsequent Indebt- edness, offset, or counterclaim, in favor of the reputed owner and against the contractor; no alteration of any such contract shall affect any lien acquired under the provisions of this chapter. In case such contracts and alterations thereof do not conform substantially to the provisions of this section, the labor done and materials furnished by all persons except the contractor shall be deemed to have been done and fmnished at the personal instance and request of the person who contracted vrith the contractor, and they shall have a lien for the value thereof. Any of the persons mentioned in section eleven hundred and eighty-three, except the contractor, may at any time give to the reputed owner a written notice that they have per- formed labor or furnished materials, or both, to the con- tractor, or other person acting by authority of the reputed owner, or that they have agreed to do so, stating in general terms the kind of labor and materials, and the name of the person to or for whom the same was done or furnished, or both, and the amount in value, as neir as may be, of that already done or furnished, or both, and of the whole ag^reed to be done or furnished, or both. Such notice may be given by delivering the same to the reputed owner person- ally, or by leaving it at his residence or place of business, with some person in charge, or by delivering it to his architects, or by leaving it at their residence or place of business, with some person in charge, or by posting it In a conspicuous place upon the mining claim or improve- ment. No such notice shall be invalid by reason of any defect of form, provided it is sufficient to inform the reputed owner of the substantial matters herein provided for, or to put him upon inquiry as to such matters. Upon such notice being given, it shall be the duty of the person who contracted with the contractor to, and he shall, with- hold from his contractor, or from any other person acting under such reputed owner, and to whom by said notice the said labor or materials, or both, have been furnished, or ogreed to be furnished, sufficient money due, or that may become due to such contractor, or other person, to answer such claim and any lien that may be tiled therefor for record under this chapter, including counsel fees not ex- ceeding one hundred dollars in each case, besides reason- able costs provided for in this chapter. En. March 11, 1872. Am'd. 1S85, 144; 1887, 153. 449 IJ;ENS of mechanics, etc. §§ llS5-nS7 Cal. Rep. Cit 61, 353; 81, 174; 81, 643; 81, 644; 82, 44 82, 149; 86, 24; 86, 25; 88, 26; 87, 593; 87, 594 90, 546; 90, 547; 90, 548; 90, 578; 90, 600; 91, 139 91, 140; 91, 365; 91, 561; 92, 237; 94, 234; 94, 560 94, 561; 97, 188; 97, 645; 99, 635; 104, 225; 107, 60 107, 65; 109, 551; 111, 667; 112, 291; 119, 182; 122, 81 124, 27; 124, 513; 125, 226; 125, 589; 126, 14; 129, 413 130. 238; 130, 239; 130, 242; 131, 136; 132, 495; 133 117; 133, 243; 133, 244; 135, 640; 135, 642; 136, 124 136, 126; 138, 427; 138, 429; 138, 430; 138, 628; 139 382; 146, 269; 146, 270; 146, 271; 146, 273; 146, 276 § 1185. What Interest in the land subject to the lien. The land upon which any building, improvement, well, or structure is constructed, together with a convenient space about the same, or much as may be required for the convenient use and occupation thereof, to be determined by the court on rendering judgment is also subject to the lien, if at the commencement of the work, or the furnish- ing of the materials for the same, the land belonged to the person who caused said building, improvement, well, or structure to be constructed, altered, or repaired, but if such person owned less than a fee simple estate in such land, then only his interest therein is subject to such lien. En. March 11, 1872. Am'd. 1873-4, 351; 1899, 24. Cal. Rep. Cit 54, 627; 61, 353; 66, 196; 66, 197; 66, 292 70, 126; 74, 360; 80, 277; 80, 278; 80, 279; 87, 512 94, 211; 98, 286; 109, 551; 120, 284; 120, 285; 126, 12 146, 687; 146, 688; 147, 493; 147, 495. § 1186. Effect of liens. The liens provided for in this chapter are preferred to any lien, mortgage, or other en- cumbrance which may have attached subsequent to the time when the building. Improvement, or structure was commenced, work done, or materials were commenced to be furnished; also, to any lien, mortgage or other encum- brance of which the lienholder had no notice, and which was unrecorded at the time the building. Improvement or structure was commenced, work done, or the materials were commenced to be furnished. En. March 11, 1872. Cal. Rep. Cit 57, 49; 61, 354; 66, 199; 66, 200; 66, 201; 74, 360; 80, 67; 87, 627; 131, 144; 140, 505; 142, 243. Parties to suit: Sec. 1190. § 1187. Claim of lien to be filed in recorder's office. The owner of any property on which labor has been Code Civil Proc— 29. § 1187 LIENS OF MECHANICS, ETC. 450 performed, or for which materials have been furnished to be used in the construction, alteration, addition to, or repair, either in v/hole or in part, of any work, mentioned In section eleven hundred and eighty-three of this co^le m st, within ten days after the completion thereof, or within forty days after cessation from labor upon any unfinished contract, or upon any unfinished building, im- provement, or structure, or the alteration, addition to, or the repair thereof, file for record in the office of the county recorder of the county, or city and county, in which such property or some part thereof is situated, a notice setting forth the date when such building, improvement, or structure, or the alteration, addition to, or repair there- of, was actually completed, or in case of cessation from labor for thirty days, the date on which such cessation ac- tually occurred, and said notice shall also contain the name and the nature of the title of the person who caused the said building. Improvement, or structure to be erected, or said alteration, addition to, or repair to be made, and also a description of the property sufficient for identification, and said notice must be verified by said owner or some other person in his behalf. In case any such owner neglect to file said notice as herein required, within the time here- in required, then the said owner and all persons deraigning title from him, and all persons claiming an interest in said property, shall be estopped in any proceedings brought to foreclose any mechanics' Hen or liens, provided for In this chapter, from maintaining a defense therein based on the ground that said lien or liens have not been filed within the time provided in this chapter. Said notice, when so filed for record must be recorded by the county recorder with whom the same is filed for record, and the fee for recording the sajne shall be the sum of one dollar. Every original contractor, at any time after the comple- tion of his contract, and until the expiration of sixty days after the filing of said notice of completion or notice of cessation of labor by the owner, and every person save the original contractor claiming the benefit of this chapter at any time after the completion of any building, improve- ment, or structure, or of the alteration, addition to, or repair thereof, and until the expiration of thirty days after the filing of said notice of completion or cessation by said owner, or within thirty days after the performance of any labor in a mining claim, must file for record with the county recorder of the county, or city and county. In which such property or some part thereof Is situated, a 451 LIENS OF MECHANICS, ETC, § 1187 claim containing a statement of his demand, after deduct- ing all just credits and offsets, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed, or to whom he furnislied the materials, with a statement of the terms, time given, and conditions of his contract, and also a de- scription of the property to be charged with the lien, suffi- cient for identification, which claim must be verified by the oath of himself or of some other person; provided, how- ever, that in any event all claims of lien must be filed within ninety days after the completion of said building, improvement, or structure, or the alteration, addition to or repair thereof. Any trivial imperfection in the said work, or "in the construction of any building, Improvement, or structure, or of the alteration, addition to, or repair there- of, shall not be deemed such a lack of completion as to prevent the filing of any lien; and in all cases the occu- pation or use of a building, improvement, or structure, by the owner, or his representative, or the acceptance by said owner or his agent of said building, improvement, or struc- ture', and cessation from labor for thirty days upon any contract or upon any building, improvement, or structure, or the alteration, addition to, or repair thereof, shall be deemed equivalent to a completion thereof for all the pur- poses of this chapter. En. March 11, 1872 Am'd. 1873-4, 410; 1887, 154; 1897, 202. Cal. Rep. Cit 54, 221; 54, 222; 54, 642; 55, 391; 60, 441 CI, 353; 63, 104; G3, 430; C5, 341; 70, 126; 72, 79 74, 277; 74, 278; 74, 279; 74, 433; 76, 510; 78, 195 78, 196; 80, 276; 81, 646; 82, 146; 82, 150; 82, 151 82, 658; 85, 83; 85, 85; 86, 342; 87, 512; 87, 629 88, 22; 88, 23; 88, 150; 90, 545; 90, 594; 90, 595 90, 597; 90, 601; 91, 140; 91, 365; 92, 237; 94, 208 94, 237; 94, 238; 96, 334; 96, 337; 96, 338; 96, 386 97, 257; 97, 265; 102, 140; 102, 325; 103, 106; 103, 107 106, 232; lOG, 235; 107, 65; 109, 180; 109, 550; 109, 551 110, 165; 110, 167; 110, 168; 115, 3; 115, 662; 119, 379 120, 139; 120, 183; 120, 184; 122, 104; 122, 105; 124, 26 134, 513; 125, 226; 125, 283; 125, 284; 125, 373; 127, 44 131, 160; 132, 494; 133, 119; 135, 639; 136, 91; 138, 614 138, 616; 138, 617; 141, 33; 146, 332; 147, 494. Verification of claim: Ante, sec. 446. {§ llSS-1131 UENS OF MECHANICS. ETC. 452 S 1188. Liens upon two or more pieces of property. Amount due from each to be designated. In every case In ■which one claim is filed against two or more buildings, mining claims or other improvements owned by the same person, the person filing such claim must, at the same time, designate the amount due to him on each of such buildings, mining claims, or other improvements; otherwise the lien of such claim Is postponed to other liens. The lien of such claimant does not extend beyond the amount designated, as ag-ainst other creditors having liens by judgment, mort- gage, or otherwise, upon either of such buildings or other Improvements, or upon the land upon which the same are situated. En. March 11, 1872. Cal. Rep. Clt. 55, 163; 55. 285: 61. 353; 72, 84; 88, 43; 102, 141; 110, 510. § 1189. Claim to be recorded. Fees of recorder. The recorder must record the claim in a book kept by him for that purpose, which record must be indexed as deeds and other conveyances are required by law to be indexed, and for which he may receive the same fees as are allowed by law for recording deeds and other instruments. En. March 11, 1872. 5 1190. Time of continuance of Hen. No lien proyided for in this chapter binds any building, mining claim, im- provement, or structure, for a longer period than ninety days after the same has been filed, unless proceedings be commenced in a proper court within that time to enforce the same; or, if a credit be given, then ninety days after the expiration of such credit; but no lie-n continues in force for a longer time than two years from the time the work is completed, by any agreement to give credit En- March 11, 1872. Cal. Rep. Cit 63, 122; 74, 278; 74, 279; 82, 658; 107, 65. Complaint, generally: Ante, sea 426. Personal action: Post, sec. 1197. § 1191. Lien upon lot for improving. Any person who, at the request of the reputed owner of any lot in any incorporated city or town, grades, fills in, or otherwise im- proves, the same, or the street or sidewalk in front of or adjoining the same, or constructs any areas, or vaults, or 453 LIEKS OF MECHANICS, ETC. 55 1192, 1193 cellars, or rooms, under said sidewalks, or makes any improvements in connection therewith, has a lien upon said lot for his work done and materials furnished. En. March 11, 1872. Am'd. 1885, 145; 1887, 155. Cal. Rep. Cit. 72, 512; 80, 67; 96, 257; 110, 3G3; 110, 510; 117, 213; 117, 214; 119, 412; 126, 13; 131, 225; 133, 115; 133, 117; 133, 118; 138, 575; 145, 201; 145, 263; 145, 265. § 1192. At Instance of owner, what held to be con- structed. Every building or other improvement men- tioned in section one thousand one hundred and eighty- three of this code, constructed upon any lands with the knowledge of the owner, or the person having or claim- ing any Interest therein, shall be held to have been con- structed at the instance of such owner or person having or claiming any interest therein, and the Interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this chapter, unless such owner or person having or claiming an interest therein shall, within three days after he shall have obtained knowledge of the con- struction, alteration, or repair, or the intended construc- tion, alteration, or repair, give notice that he will not be responsible for the same, by posting a notice in writing to the effect, in some conspicuous place upon said land, or upon the building or other improvement situated thereon. En. March 11, 1872. Am'd. 1873-4, 410. Cal. Rep. Cit. 54, 336; 55, 163; 66, 200; 66, 201; 72, 513; 80, 277; 80, 278; 80, 279; 80, 280; 82, 145; 82, 146; 86, 340; 87, 513; 87, 627; 104, 34; 114. 492: 114. 493; 116, 335; 117, 214; 118, 152; 119, 379; 120, 139; 120, 284; 122, 518; 122, 520; 122, 522; 126. 567; 128, 366; 131, 162; 133, 117; 133, 118; 133, 288; 133, 289; 139, 498; 140, 504. § 1193. Contractor; Hens for claims against. The con- tractor shall be entitled to recover upon a lien filed by him only such amount as may be due to him aocording to the terms of his contract, after deductiwg all claims of other parties for work done and materials furnished, as aforesaid; and in all cases where a lien shall be filed, under this chapter, for work done or materials furnished to any contractor, he shall defend any action brought thereupon at his own expense; and during the pendency of such ac- tlon« tbe owner may -withhold frcon t!r. ''"contxactor tiie §§ nOi, 1135 LIENS OF MECHANICS, ETC. 4S4 amount of money for which [such] lien is filed; and in case of judgment against the owner or his property, upou the lien, the said owner shall be entitled to deduct from any amount due or to become due by bim to the contractor, the amount of such judgment and costs; and if the amount of such judgment and costs shall exceed the amount due by him to the contractor, or if the owner shall have settled with the contractor in full, he shall be entitled to recover back from the contractor any amount so paid by him, the said owner, in excess of the contract price, and for which the contractor was originally the party liable. En. March 11, 1872. Am'd. 1873-4, 411. Cal. Rep. Cit. 55, 392; 78, 200; 99, 634; 107. 275; 123. 533; 123, 534; 146, 284; 146. 285. § 1194. Court to declare rank of liens. Deficiency to be docketed. In every case in which different liens are asserted against any property, the court in the judgment must declare the rank of each lien, or class of liens, which shall be in the following order, viz.: 1. All persons performing manual labor in, or about the same. 2. Persons furnishing materials. 3. Subcontractors. 4. Original contractors. And the proceeds of the sale of the property must be applied to each lien or class of liens in the order of its rank; and whenever, in the sale of the property subject to the lien, there is a deficiency of proceeds, judgment may be docketed for the deficiency in like manner and with like effect as in actions for the foreclosure of mort- gages. En. March 11, 1872. Am'd. 1873-4, 412; 1885, 145. Cal. Rep. Cit. 55, 391; 55, 392; 78, 199; 78, 200; 90, 376; 90, 548; 92, 237; 107, 197; 126, 684; 126, 685; 135, 640; 135, 641. Deficiency judgment: Ante, sec. 726. § 1195. Any number of lienholders may join in action. Any number of persons claiming liens may join in the same action, and when separate actions are commenced, the court may consolidate them.. The court must also allow, as a part of the costs, the money paid for filing and recording the lien, and reasonable attorneys' fees in the superior and supreme courts, such costs, and attorneys' fees to be allowed to each lien claimant whose lien is es- 455 LIENS OF MECHANICS, ETC. §S 1196-1199 tablished, whether he he plaintiff or delendant, or whether they all join in one action, or separate actions are consolidated. En. March 11, 1872. Am'd. 1873-4, 412; 1885, 146. Cal. Rep. Cit 60, 440; 68, 263; 72, 397; 74, 279; 74, 535; 76, 582; 78, 200; 80, 281; 84, 539; 87, 513; 88, 42; 90, 548; 91, 554; 94, 193; 94, 194; 94, 232; 99, 634; 100, 490; 106, 234; 107, 195; 107, 275; 110, 165; 115, 5; 124, 516; 127, 328; 127, 642; 140, 507; 146, 285. ■Consolidation of actions — Generally: Ante, sec. 1048. § 1196. Attachment, etc., against materials. When- ever materials shall have been furnished for use in the construction, alteration or repair, of any building or other improvement, such materials shall not be subject to at- tachment, execution, or other legal process, to enforce any debt due by the purchaser of such materials, except a debt due for the purchase money thereof, so long as in good faith the same are about to be applied to the con- struction, alteration, or repair of such building, mining claim, or other improvement, Kn. March 11, 1872. Am'd, 1873-4, 412. § 1197. Lien does not impair right to proceed for re- covery of the debt. Nothing contained in this chapter shall be construed to impair, or affect the right of any person to whom any debt m.ay be due for work done or materials furnished to maintain a personal action to re- cover such debt against the person liable therefor. En. March 11, 1872. Am'd. 1873-4, 351. Cal. Rep. Cit. 70, 221; 95, 394; 107, 197. § 1198. Rules of practice. Except as otherwise pro- vided in this chapter, the provisions of part two of this code are applicable to and constitute the rules of practice in the proceedings mentioned in this chapter. En. March 11, 1872, See ante, sees. 307 et seq. 5 1199. New trials and appeals. The provisions of part two of this code relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this chapter, apply to the proceedings mentioned in this chapter. En. March 11, 1872. §§ 1200-1202 LIENS OF MECHANICS, ETC. «M Cal. Rep. Cit. CI, 353. See ante, sees. G56 et seq. and sees. 936 et seq. § 1200. Where contractor fails to perform contract. In case the contractor shall fail to perform his contract in full, or shall abandon the same before completion, the portion of the contract price applicable to i*ne liens of other persons than the contractor shall be fixed as fol- lows: From the value of the work and materials already done and furnished at the time of such failure or aban- donment, including materials then actually delivered or on the ground, which shall thereupon belong to the owner, estimated as near as may be by the standard of the whole contract price, shall be deducted the payments then d le and actually paid, according to the terms of the contract and the provisions of sections one thousand one hundred and eighty-three and one thousand one hundred and eighty-four, and the remainder shall be deemed the por- tion of the contract price applicable to such liens. En. Stats. 1885, 146. Cal. Rep. Clt 90, 593; 94, 237; 102, 444; 105, US; 132, 495. § 1201. Written consent to waive claims. It shall not be competent for the owner and contractor, or either of them, by any term of their contract, or otherwise, to waive, affect, or impair the claims and liens of other persons, whether with or without notice, except by their written consent, and any term of the contract to that effect shall be null and void. En. Stats. 1885, 146. Cal. Rep. Cit. 97, 188; 133, 245; 146, 271. § 1202. What forfeits liens. Any person who shall will- fully give a false notice of his claim to the owner, under the provisions of section one thousand one hundred and eighty-four, shall forfeit his lien. Any person who shall willfully include in his claim, filed under section one thousand one hundred and eighty-seven, work or mater- ials not performed upon or furnished for the property de- scribed in the claim shall forfeit his lien. If the owner and his contractor shall directly or indirectly conspire to or agree that the written contract filed shall appear to show the contract price to be less than it really is, and it shall accordingly so show, then such contract shall be wholly void, and no recovery shall be had thereon by either party thereto, and in such case the lat)or done and materials furnished by all persons except the contractor, 457 LJENS FOR SALARIES. §§ 1203, 1204 shall be deemed to have been done and furnished at the personal instance of the owner and they shall have a lien for the value thereof. En. Stats. 1885, 146. Cal. Rep. Clt 91, 3C5; 91, 3C6; lOG, 235. § 1203. Bond of contractor to be filed. Every contract required to be filed under the provisions of this chapter shall be accompanied by a good and sufficient bond in an amount equal to at least twenty-five per cent of the conti-act price, which said bond shall be filed at the same time and in the same manner as herein provided for the filing of such contract or memorandum thereof. Said bond shall, by its tei'ms, be made to inure to the benefit of any and all persons who perform labor for or furnish materials to the contractor or any person acting for him or by his authority; and any such person shall have an action to recover upon said bond, against the principal and sureties, or either of them, for the value of such labor or materials, or both, not exceeding the amount of the bond; but such action shall not affect his lien nor any action to foreclose the same, except that there shall be but one satisfaction of his claim, with costs and coun- sel fees. Any failure to comply with the provision of this section shall render the owner and contractor jointly and severally liable in damages to any and all materialmen, laborers and subcontractors entitled to liens upon the property affected by said contract. En. Stats. 1885, 147. Rep. 1887, 155. En. 1893, 202. Cal. Rep. Cit. 127, 387; 128, 145; 128, 146; 128, 147; 128, 667; 128, 668; 128, 669; 129, 394; 133, 374; 136, 57; 136, 126; 138, 544; 138, 546; 139, 193; 139, 194; 139, 326; 139, 380; 140, 489; 145, 206. CHAPTER m. CERTAIN UENS FOR SALARIEIS AND WAGES. ; 1304. Wages and salaries preferred claims In cases ot asslgnmenta. § 1205. Priority of wages In case of death of employer. § 1206. Same In cases of execution or attachment. § 1207. Dispute of claim or portion thereof — Costs. § 1204. Wages and salaries preferred claims In cases of assignments. In all assignments of property made by any 5§ 1205, 1M6 LIENS FOK SALARIES. 45S person to trustees or assignees, on account of the inabil- ity of the person, at the time of the assignment, to pay his debts, or In proceedings in insolvency, the wages and salaries of the miners, mechanics, salesmen, servants, clerks, laborers employed by such person or any other person, who renders services or performs work to the amount of one hundred dollars each, and for services rendered within sixty days previously, are preferred claims, and must be paid by such trustees or as- signees before any other creditor or creditors of the as- Blgnor. En. March 11, 1872. Am'd. 1873-4. 352: 1893, 97. Cal. Aep. CIt. 84, 559; 125, 417. Assignments for benefit of creditors: Civ. Code, sees. 8449-3473. § 1205. Priority of wages In case of death of employer. In case of the death of any employer, the wages of each miner, mechanic, salesman, clerk, servant, laborer, or any other person who renders services, or performs work for services rendered within the sixty days next preceding the death of the employer, not exceeding one hundred dollars, rank In priority next after the funeral expenses, expenses of the last sickness, the charges and expenses of admin- istering upon the estate, and the allowance to the widow and Infant children and must be paid before other claims against the estate of the deceased person. En. March 11, 1872. Am'd. 1873-4, 352; 1893, 97. Cal. Rep. CIt. 122, 4G3. Estates of deceased persons, payment of debts, gener- ally: Post, sees. 1643 et seq. § 1206. Same, In cases of execution or attachment. In cases of executions, attachments, and writs of a similar nature, issued against any person, except for claims for labor done, any miners, mechanics, salesmen, servants, clerks and laborers, or any other person who renders services or performs work, who have claims against the defendant for labor done or work performed, may give notice Jf their claims, and the amount thereof, sworn to by the person making the claim, to the creditor and the officer executing either of such writs, at any time before the actual sale of property levied on, or, in the event of a 459 MENS FOR SALARIES. S 1207 levy upon money, at any time before the transfer of such money under execution; and, unless such claim Is dis- puted by the debtor or a creditor, such officer must pay to such person, out of the proceeds of the sale, or In the event of a levy on money, out of such money, the amount each is entitled to receive for services rendered within* the sixty days next preceding the levy of the writ, not ex- ceeding one hundred dollars. If any or all of the claims so presented and claiming preference under this section are disputed by either the debtor or a creditor, the per- son presenting the same must commence an action within ten days for the recovery thereof, and must prosecute his action with due diligence, or be forever barred from any claim or priority of payment thereof; and the officer shall retain possession of so much of the proceeds of the sale or money as may be necessary to satisfy such claim until the determination of such action; and in case judg- ment be had for the claim, or any part thereof, carrying costs, the costs taxable therein shall likewise be a pre- ferred ci'alm with the same rank as the original claim. En. March 11, 1872. Am'd. 1873-4, 352; 1893, 87. Cal. Rep. CIt. 63, 382; 63, 383; 81, 271; 81, 273; 83, 223 149 401 83, 224; 115, 145; 115, 147; 115, 148; 115, 122, 533; 128, 43; 128, 44; 141, 400; 141, 141, 402. § 1207. Dispute of claim or portion thereof — Costs. The debtor or creditor intending to dispute a claim presented under the provisions of the last section shall, within ten days after receiving notice of such claim, serve upon the claimant and the officer executing the writ a statement In writing, verified by the oath of the debtor or the per- son disputing such claim, setting forth that no part of said claim, or not exceeding a sum specified. Is Justly due from the debtor to the claimant for services rendered within the sixty days next preceding the levy of the writ. If the claimant bring suit on a claim which is disputed in part only and fail to recover a sum exceeding that which was admitted to be due, he shall not recover costs, but costs shall be adjudged against him. En. Stats. 1883, 47. Cal. Rep. Cit. 83, 223; 115, 145; 128, 44. PART III. TITLE IV. CHAPTER IV. [Chapter added March 21, 1905. Stats. 1905, 632.] CERTAIN LIENS UPON ANIMALS. § 1208. Liens arising from acts done In preventing cruelty to EinlmalS, how enforced. g 1208. Lien upon certain animala. Any person hav- ing a lien upon anj'- animal or animals under the provi- Bions of sections five hundred and ninety-seven a, or five hundred nnl ninety-seven b, of the Penal Code may sat- isfy such lien as follows: If such lien be not discharged and satisfied, by the person responsible, within three days after the obligation becomes due, then the person holding such lien may resort to the proper court to satisfy the claim; or he, three days after the charges against such property become due, may sell the same, or such undi- vided fraction thereof as may become necessary, to defray the amount due and costs of sale, by giving three days' notice of the sale by advertising in some newspaper pub- lished In the county, or city and county, in which the lien has attached to the property; or. If there Is no paper pub- lished In the county, then by posting notices of the sale In three of the most public places in the town or township for three days previous to the sale. Said notices shall contain an accurate description of the property to be solA^ together with the terms of sale, which must be for cash, payable on the consummation of the sale. The proceeds of the sale must be applied to the discharge of the lieu and the costs of sale; the remainder, If any, must be paid over to the owner, If known, and if not known must be paid Into the treasury of the humane society of the coun- ty, or city and county, wherein the sale takes place; If no humane society exists In the county, then the remainder ?hall be paid Into the county treasury. En. Stats. 1905, 632. This Is merely a codification of the provisions concerning foreclosure ot Hens In the statutes of 1873-*, page 499, and 1901, page 285, relating to cruelty to animals, the penal features whereof have already been codi- fied Into the Penal Code and the civil features Into the Civil Code.— Code Commissioner's Note. (ifiO) 40. CONTEMPra i ^^ TITLE V. OF CONTEMPra § 1209. What acts or omissions are contempts. 5 1210. Re-entry on property after eviction, when a contempt. 5 IZU. A contempt committed In the presence of the court may bo punished summarily. When not so committed, an affidavit or statement shall be made. 5 1212. A warrant of attachment may Issue or a notice to show cause. § 1213. Bail may be given by a person arrested urrder such warrant. S 1214. Sheriff must, upon executing the warrant, arrest and detaJa the person until discharged. S 1215. Ball bond, form and conditions of. 5 1216. Officer must return warrant and undertaking, If any. § 1.17. Hearing. I 1218. Judgment and penalty, if guilty. 5 1219. If the contempt is the omission to perform any act, the per- son may be Imprisoned until performance. 5 1220. If a party fall to appear, proceedings. J 1221. Illness sufficient cause for nonappearance of party arrested. Confinement imder arrests for contempt. S 1222. Jtrdgment and orders In such cases final. § 1209. What acts op omissions are contempts. The following acts or omissions in respect to a court of jus- tice, or proceedings therein, are contempts of the author- ity of the court: 1. Disorderly, contemptuous, or insolent behavior to- ward the judge while holding the court, tending to inter- rupt the due course of a trial or other judicial proceeding. 2. A breach of the peace, boisterous conduct or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding. 3. Misbehavior in oflBce, or other willful neglect or vio- lation ol duty by an attorney, counsel, clerk, sheriff, coro- ner, or other person, appointed or elected to perform a judicial or ministerial service. 4. Deceit or abuse of the process or proceedings of the court by a party to an action or special proceeding. 5. Disobedience of any lawful judgment, order or pro- cess of court. 6. Assuming to be an oflBcer, attorney, counsel of a court, and acting as such, without authority. 7. Rescuing any person or property, in the custody of an oflBcer, by virtue of an order or process of such court 8. Unlawfully detaining a witness, or party to an action, while going to, remaining at, or returning from the court ■where the action is on the calendar for trial. 9. Anj^ other unlawful interference with the process or proceedings of a court. 10. Disobedience of a subpoena duly served, or refusing to be sworn or answer as a witness. I 1210 CONTEMPTS. 462 11. WTien summoned a.? a juror in a court, noglccting to attend or serve as such, or improperly conversing with a party to an action, to be tried at sucli court, or witli any other person, in relation to the merits of such action, or receiving a communication from a party or other person in respect to it, without immediately disclosing the same to the court. 12. Disobedience by an inferior tribunal, magistrate, or oflioer, of the lawful judgment, order, or process of a superior court, or proceeding in an action or sporial pro- cefxling contrary to law, after such action or special pro- ceeding is removed from the jurisdiction of such inferior tribunal, magistrate, or officer. Disobedience of the lawful orders or process of a judicial officer is also a contempt of the authority of such officer. But no speech or publica- tion reflecting upon or concerning any court or any officer thereof shall be treated or punished as a contempt of such court, unless made in the immediate presence of such court while in session, and in such a manner as to actually interfere with its proceedings. En. March 11, 1872. Am'd. 1891. 6. Cal. Rep. Cit 47, 133; 53, 207; 64, 345; 64. 439; 65, 192; 07, C45; 69, 4; G9. 17; 69, 543; 69, 585; 84, 55; 90, 556; 94, 334; 99, 3C1; 119, 422; 140, 5; 140, 9; 140, 12; 140, 14; 140, 15; 140, 16; 140, 215; 147, 101. Subd. 3— 64, 438; 64, 598. Subd. 4—73, 241. Subd. 5—90, 556; 99. 529; 140, 4. Subd. 6—64, 598. Subd. 9—64, 438; 69, 31; 85, 607; 99, 529; 140, 4. Subd. 10—70, 53; 72, 512; 140, 4. Prac. Act, sec. 480. En. April 29, 1851. Cal. Rep. Cit. 7, 182. Powers of courts: Ante, sees. 128, 177, 178. Juror willfully failing to attend: Ante, sec. 238. Dispossession of party placed in possession under pro- cess: Post, sec. 1210. In justices' courts: Ante, sees. 906-910. Misbehavior of attorney: Ante, sees. 287 et seq. Disobedience of lawful judgment or order — By executor: Post, sec. 1440. Disobedience of citation in probate court: Post, sees. 1440, 1400, 1461. Disobedience of witness: Post, sees. 1991-1994. Disobedience of mandate: Ante, sec. 1097. Supervisors, power of to punish for contempt: See Pol. Code, sec. 4047. § 1210. Re-entry on property after eviction, when a contempt. Every person dispossessed or rejected from or 463 CONTEMPTS. I IZU out of any real property by the judgment or process of any court of competent jurisdiction, a&d who, not having right so to do, re-enters into or upon or takes possession of any such real property, or intiuces or procures any person not having right so to do, or aids or abets him therein, is guilty of a contempt of the court by which such judgment was rendered or from which snoh process issued. Upon a con- viction for such contempt the court must immediately issue an alias process, directed to the proper officer, and requir- ing him to restore such possession to the party entitled under the original judgment or process (or to his lessor or to his grantor). And no appeal from the order directing the issuance of an alias writ of possession shall stay the execution thereof, unless a written undertaking be executed on the part of the appellant, with two or more sureties, to the effect that he will not commit or suffer to be com- mitted any waste therein, and if the order be affirmed or the appeal dismissed, he will pay the value of the use and occupation of the property from the time of his unlawful re-entry until the delivery of the possession thereof, pur- suant to the judgment or order, not exceeding a sum to be fixed by the judge of the court by which the order for the alias writ was made, and which must be specified In the undertaking. En. March 11, 1872, Am'd. 1893, 281. Cal. Rep. Cit 52, 508; 62, 480; 69, 4; 70, 212; 135, 320. S 1211. A contempt committed In the presence of the court may b'^ punished summarily. When not so com- mitted, an affidavit or statement shall be made. 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 must 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 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 constituting the contempt or a statement of the facts by the referees or arbitrators, or other judicial officer. En. March 11, 1872. Cal. Rep. Cit 60, 93; 71, 240; 73, 497; 77, 200; 77, 201; 92, 480; 126, 245; 131, 284; 140, 2; 140, 217; 146, 133, Prac. Act, sec. 481. En. April 29, 185L Cal. Rep. Cit 7, 183; 42, 415. {{ 1213-12H C?ONTElIPTS. 464 Contempt away from court, attachment: Post. sees. 1212 et seq. Reciting the facts: Post, sec. 1219. § 1212. A warrant of attachment may Issue or a notice to show cause. When the contempt is not committed in the 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 previous arrest, a warrant of commitment may upon notice or upon an order to show cause be gi-anted; and no warrant of commitment can be Issued without such previous attachment to answer, or Buch notice or order to show cause. En. March 11, 1872. Cal. Rep. Cit. 59, 421; 60, 6; 65, 191; 73, 497; 126, 245. Prac. Act, see. 482. En. April 29, 1851, § 1213, Bail may be given by a person arrested under such warrant. Whenever a warrant of attachment Is is- sued, pursuant to this title, the court or judge must direct by an indorsement on such warrant, that the person charged may be let to bail for his appearance in an amount to be specified in such indorsement. En. March 11, 1872. Prac. Act, sec. 483. En. April 29, 1851. Am'd. 1859, 140. § 1214. Sheriff must, upon executing the warrant, ar- rest and detain the person until discharged. Upon ex- ecuting the warrant of attachment, the sheriff must 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. En. March 11, 1872. Prac. Act, sec. 484. En. April 29, 1851. § 1215. Bail bond, form and conditions of. When a di- rection to let the person arrested to bail is contained in the warrant of attachment, or indorsed thereon, he must be discharged from the arrest upon executing and deliv- ering to the officer, 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 di- rected, the sum specified in the warrant En. March 11, 1872. Prac Act, sec. 485. En. April 29, 1851. § 1216. Officer must return v/arrant and undertaking, If any. The officer must return the warrant ot arrest and 4K CONTEMPTS. § 1217-1220 undertaking, if any, received by him froai the person ar- rested, by the return day specified therein. En. March 11, 1872. Prac. Act, sec. 486. En. April 29, 1851. CaL Rep. Cit. 45, 7. § 1217. Hearing. When the person arrested has been brought up or appeared, the court or judge must proceed to investigate the charge and must hear any answer which the person arrested may make to the same, and may ex- amine witnesses for or against him, for which an adjourn- ment may be had from time to time, if necessary. En. March 11, 1872. Cal. Rep. Clt 60, 93; 69, 4; 73, 497; 119, 423. Prac. Act, sec. 487. En. April 29, 1851. § 1218. Judgment and penalty, if guilty. Upon the answer and evidence taken the court or judge must de- termine whether the person proceeded against is guilty of the contempt charged, and If it be adjudged that he is guilty of the contempt, a fine may be imposed on him not exceeding five hundred dollars, or he may be impri- soned not exceeding five days, or both. En. March 11, 1872. Cal. Rep. Cit 60, 93; 64, 438; 69, 3; 73, 497; 94, 334; 119, 58; 122, 204. Prac. Act, sec. 488. Ehi. April 29, 1851. Cal. Rep. Cit 6, 321; 32, 88; 44, 478. § 1219. If the contempt is the omission to perform any act, the person may be Imprisoned until performance. When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he have performed it, and in that case the act must be specified in the warrant of commit- ment En. March 11, 1872. Cal. Rep. Cit 47, 133; 69, 3; 69, 4; 81, 67; 83, 462; 90, 556; 119, 58; 122, 203; 122, 204; 140, 218. Prac. Act sec. 489. En. April 29, 185L Cal. Rep. Cit 6, 321; 7, 177; 44, 478. Executor or administrator, contempt: Post, sec. 1440. § 1220, If a party fail to appear, proceedings. 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 under- Code Civil Proc,— 30. gS 1221-n27 VOLUNTARY DISSOLUTION. 466 taliing be prosecuted, the measure of damages in the action is the extent of the loss or injury sustained by the ag- giieved party, by reason of the misconduct for which the warrant was issued, and the costs of the proceeding. En. March 11, 1872. Prae. Act, sec. 491. En. April 29, 1851. § 1221. Illness sufiacient cause for nonappearance of party arrested. Confinenient under arrests for contempt. Whenever, by the provisions of this title, an officer is re- quired to keep a person arrested on a warrant of attach- ment in custody, and to bring him before a court or judge, the inability, from illness or otherwise, of the person to attend is sufficient excuse for not bringing him up; and the officer must not confine a person arrested upon the warrant in a prison, or otherwise restrain him of personal liberty, except so far as may be necessary to secure his personal attendance. En. March 11, 1872. Prac. Act, sec. 492. En. April 29, 1851. § 1222. Judgment and orders in such cases final. The judgment and orders of the court or judge, made in cases of contempt, are final and conclusive. En. March 11, 1872. Cal. Bop. Cit. 52, 508; 62, 481; 65, 30; 65, 31; 69, 543; 77, 201; 81, 66; 88, 624; 90, 554; 90, 556; 90, 558; 99, 361; 118, 141. Prac. Act, sec. 493. En. April 29, 1851. Cal. Kep. Cit. 52, 508. TITLE VI. OF THH VOLUNTAKY DISSOLUTION OF CORPORATIONS. § 1;=*7. How dissolved. § 1'28. Application, what to contain. § 122$, A-pplication, how signed and verified. § 1:^S0. Filing application and publicatlcni at notice. \ V3X. Objections may be filed. § ITS?. Hearing of application. •i liSS. Judgment-roll azid appeals, I 1231. Application by savings and loan society. § 1227. How dissolved. A corporation may be dis- solved by the superior court of the county where its prin- ecipal place of business is situated, upon its voluntary ap- pl^Eziilon for that purpose. En, M%rch 11, 1872. Am'd. 18r?-S, 108; 1880, 109. Cal. Rep. Cit 81, 386; 81, 337; S4, 335. Voluntary dissolution, receiver: Ante, sec. 565. Involuntary dissolution: Ante, sses. &02 et ssq. 4«7 VOLUNTARY DISSOLUTION. J§ 122S-1233 § 1228. Application, wliat to contain. The application must be in writing, and must set forth: 1. That at a meeting of the stockholders or members called for that purpose, the dissolution of the corporation was resolved upon by a two-third vote of all the stock- holders or members. . 2. That all claims and demands against the corporation have been satisfied smd discharged. En. March 11, 1272. § 1229. Application, hsw signed and vsrified. The ap- plication must be signed Ijy a majority of the board of trustees, directors, or other officers having the manage- ment of the affairs of the corporation, and must be vari- fied In the same manner as a complaint in a civil action. Eru March 11, 1872. OJ. Rep. Cit 47, 133. Verification: Ante, sec. 446. § 1230. KiUng application and publication of n«iiice. If the court is satisfied that the application is in conformity with this title, the judge thereof must order it to be filed with the clerk, and that the clerk give not less than thirty nor more than fifty days' notice of the application, by publication in some newspaper published in. V^e county; i^exd if tJiere are none such, then by advertisements r<>sted up in three of the principal public places in the couuty. li,n. March 11, 1872. Am'd. 1877-8, 108; 1880, 109. § 1231. Objections may be filed. At any time before the expiration of the time of publication, any person may file his objections to the application. En. March 11, 1872. § 1232. Hearing of application. After the time of pub- lication has expired, the court may, upon five days' notice to the persons who have filed objections or without further notice, if no objections have been filed, proceed to hear and determine the application, and if all the state- ments therein made are shown to be true, must declare the corporation dissolved- En. March 11, 1872. Am'd. 1877-8, 108. Notices, service, etc.: Ante, sees. 1010 et seq. § 1233. Judgment-roll and appeals. The application, Bkotlces, and proof of publication, objections (if there be aay) and declaration of dissolution, constitute the jiidg- ment-roll; and from the judgment an appeal may be taken 9a from other judgments of the superior courts, iin, March 11. 1872. Am'd. 1377-8, 103; 1830, 109. J X234 VOLUNTARY DISSOLUTION. 4M Cal. Eep. Cit. 81, 386; 81, 387j 84, 365. Appeals to supreme court: Ante, sees. 963-966. § 1234. Application by savings and loan society. If the applicant be a savings and loan association, or engaged in the business of receiving money on deposit and there be any unclaimed deposit or dividend in its hands belonging to a person whose whereabouts arc unknown to the trus- tees, directors, or other officers presenting the application, and the application shall set forth the name of the person making such deposit or entitled to such dividend, the time when such deposit was made or dividend declared, the resi- dence, if known, of such person at the time of such deposit, the amount of such deposit or dividend, and the fact that the whereabouts of such person are known. The same facts shall be stated in the notice of the application given by the clerk. If, at any time before the expiration of the time of publication, any person shall file a claim to such deposit or dividend, the court shall, at the hearing and upon five days' notice to him, hear and determine his claim, and if such claim be established, order such money to be paid to him. All such deposits or dividends not so claimed, or as to which no claim shall be established, shall, upon order of the court, be paid into the state treas- ury, accompanied with a copy of the order, which shall set forth the facts hereinbefore required to be stated con- cerning such deposits or dividends; and, upon production of the treasurer's receipt for such payment, the court may proceed to declare the corporation dissolved as in other cases. All unclaimed deposits and dividends so paid into the state treasury shall be received, invested, accounted for, and paid out, in the same manner and by the same officers as is provided by law in the case of escheated estates and in section twelve hundred and seventy-two of this code. En. Stats. 1897, 33. 469 EMINENT DOMAIN. SS 1237. 1238 TITLE VII. OF EMINENT DOMAIN. 5 1237. Eminent domain defined. § 1-38. Purposes for which it may be exercised. § 1239. Estates subject to public use. § 1240. Private property defined. Classes enumerated. § 1241. Facts necessary to be found by court before condemnation. § 1242. Parties may make location. May enter to make surveys. § 1243. Jurisdiction In superior court. § 1244. The complaint anvl Its contents. § 12*5. Summons, what to contain. How Issued and served. § 1246. Who may defend. § 1247. Court shall have Jurisdiction to regulate the mode of making crossings or of enjoying a common use. § 1248. Court or jury to assess damages. § 1249. The date with respect to which compensation shall be assessed, and the measure thereof. § 1250. New proceedings to cure defective title. » § 125L Payment of damages or deposit of bond therefor. § 1252. Damages, to whom paM. § 1253. Final order of condemnation, what to contain. When filed. title vests. § 1254. Putting plaintiff in possession. § 1255. Costs may be allowerd, apportionment thereof. § 1256. Rules of practice. § 1257. New trials and appeals. § 125S. When title takes effect, and construction of. § 1259. When title takes effect. § 1260. Construction. § 12C1. Pending proceedings not affected. § 1262. Rules of practice. § 1263. Exceptions. § 1264. Preferencee of proceedings over other civil actions. Gen. Cit. to Title— Cal. Rep. Cit. 64, 125; 67, 431; 68, 63; 69, 301; 119, 165. § 1237. Eminent domain defined. Eminent domain is the right of the people or government to take private property for public use. This right may be exercised in the manner provided in this title. En. March 11, 1872. Cal. Rep. Cit. 87, 231; 91, 245; 91, 247; 91, 248; 130, 634; 138, 582; 145, 587. Constitutional provisions: See Const, Cal., art. 1, sec. 14; art. 12, sec. 8; art. 15, sec. 1. State may exercise right of: Pol. Code, sec. 44. § 1238. Purposes for which it may be exercised. Sub- ject to the provisions of this title, the right of eminent domain may be exercised in behalf of the following public uses: 1. Fortifications, magazines, arsenals, navy yards, navy and army stations, lighthouses, range and beacon lights. 5 123S EMINENT DOMAIN. «T0 coast surveys, and all other public uses authorized by the government of the United Stiites. 2. Public buildings and grounds for the use of the stain, and all other public uses authorized by the legislature of the state. 3. Public buildings and grounds for the use of any county, incorporated city, or city and county, village, town or school districts; canals, aqueducts, reservoirs, tun- nels, flumes, ditches or pipes for the conducting or stor- ing water for the use of the inhabitants of any county, incorporated city, or city and county, village or town, or for the draining of any count5^ incorporated city, or city and county, village or town; raising the banks of streams, removing obstructions therefrom and widening and deep- ening or straightening their channels, roads, streets and alleys, public mooring places for water craft, public parks, including parks and other places covered by water and all other public uses for the benefit of any county, incorporated city, or city and county, village or town, or the inhabitants thereof, which may be authorized by the legislature; but the mode of apportioning and collecting the costs of such improvements shall be such as may be provided in the statutes by which the same may be au- thorized. 4. Wharves, docks, piers, chutes, booms, ferries, bridges, toll-roads, by-roads, plank and turnpike roads; paths and roads either on the surface, elevated or depressed, for the use of bicycles, tricycles, motor-cycles and other horseless vehicles, steam, electric and horse railroads, canals, ditches, dams, pondings, flumes, aqueducts, and pipes for Irrigation, public transportation, supplying mines and farming neighborhoods with water, and draining and re- claiming lands, and for floating logs and lumber on streams not navigable. 5. Roads, tunnels, ditches, flumes, pipes and dumping places for working mines; also outlets, natural or other- wise, for the flow, deposit, or conduct of tailings or refuse matter from the mines; also an occupancy in common by the owners or possessors of different mines of any place, for the flow, deposit or conduct of tailings or refuse matter from their several mines. 6. By-roads leading from highways to residences, farms, mines, mills, factories and buildings for operating machin- ery, or necessary to reach any property used for public purposes. 7. Telegraph and telephone lines. C. C. p., 1906. § 1238. Subject to the provisions of this title, the right of emiuent domain may be exercised in behalf of the fol- lowing public uses: 1. ]''ortifications, magazines, arsenals, navy yards, navy and army stations, lighthouses, range and beacon lights, coast surveys, and all other public uses authorized by the government of the United States. 2. Public buildings and grounds for the use of the state, and all other public uses authorized by the legislature of the state. 3. Public buildings and grounds for the use of any county, incorporated city, or city and county, village, town or school districts; canals, aqueducts, reservoirs, tunnels, flumes, ditches or pipes for conducting or storing water for the use of the inhabitants of any county, incorporated city, or city and county, village or town, or for draining any county, incorporated city, or city and county, village or town; rais- ing the banks of streams, removing obstructions therefrom, and widening and deepening or straightening their chan- nels, roads, streets and alleys; public mooring places for water craft, public parks, including parks and other places covered by water, and all other public uses for the benefit of any county, incorporated city, or city and county, village or town, or the inhabitants thereof, which may be author- ized by the legislature; but the mode of apportioning and collecting the costs of such improvements shall be such as may be provided in the statutes by which the same may be authorized. 4. Wharves, docks, piers, chutes, booms, ferries, bridges, toll roads, byroads, plank, and turnpike roads; paths and roads either on the surface, elevated, or depressed, for the uses of bicycles, tricycles, motorcycles and other horseless vehicles, steam, electric, and horse railroads, canals, ditches, dams, pondings, flumes, aqueducts and pipes for irrigation, public transportation, supplying mines and farming neigh- borhoods with water, and draining and reclaiming lands, and for floating logs and lumber on streams not navigable. 5. Eoads, tunnels, ditches, flumes, pipes and dumping places for working mines; also outlets, natural or otherwise, for the flow, deposit, or conduct of tailings or refuse matter from mines; also an occupancy in common by the owners or possessors of different mines of any place for the flow, deposit, or conduct of tailings or refuse matter from their several mines. 6. By-roads leading from highways to residences, farms, mines, mills, factories and buildings for operating machin- ery, or necessary to reach any property used for public purposes. 7. Telegraph and telephone lines. 8. Sewerage of any incorporated city, city and county, or of any village or town, whether incorporated or unincor- porated, or of any settlement consisting of not less than ten families, or of any public buildings belonging to the state, or to any college or university. 9. Roads for transportation by traction engines or road locomotives. 10. Oil pipelines. 11. Roads and flumes for logging or lumbering purposes. 12. Canals, reservoirs, dams, ditches, flumes, aqueducts and pipes for supplying and storing water for the operation of machinery for the purpose of generating and transmitting electricity for tlie supply of mines, quarries, railroads, tram- ways, mills, and factories with electric power; and also for the supplying of electricity to light or heat mines, quarries, mills, factories, incorporated cities and counties, villages or towns; and also for furnishing electricity for lighting, heat- ing or power purposes to individuals or corporations, to- gether with lands, buildings and all other improvements in or upon which to erect, install, place, use or operate ma- chinery for the. purpose of generating and transmitting elec- tricity for any of tlie purposes or uses above set forth. 13. Electric power lines, electric heat lines; and electric light, heat and power lines. 14.. Cemeteries for the burial of the dead, and enlarging and adding to the same and the grounds thereof. 15. The plants, or any part thereof or any record therein, of all persons, firms or corporations heretofore, now or hereafter engaged in the business of searching public rec- ords, or pviblishing public records or insuring or guarantee- ing titles to real property, including all copies of, and all abstracts or memoranda taken from, public records, which are owned by or in the possession of such persons, firms or corporations, or which are used by them in their respective businesses; provided, however, that the right of eminent domain in behalf of the public uses mentioned in this sub- division may be exercised only for. the purpose of restoring or replacing, in whole or in part, public records, or the substance of public records, of any city, city and county, county or other municipality, which records have been, or may hereafter be, lost or destroyed by conflagration or other public calamity; and provided further, that such right shall be exercised only by the city, city and county, county or municipality, whose records, or part of whose records, have been, or may be, so lost or destroyed. [In effect June 1 1, 1906.] 471 EMINENT DOMAIN. i 1239 8. Sewerage of any incorporated city, city and county, or of any village or town, whether incorporated or unin- corporated, or of any settlement consisting of not less than ten families, or of any public buildings belonging to the state, or to any college or university. 9. Roads for transportation by traction engines or road locomotives. 10. Oil pipe-lines. 11. Roads and flumes for logging or lumbering purposes. 12. Canals, reservoirs, dams, ditches, flumes, aqueducts and pipes for supplying and storing water for the opera- tion of machinery for the purpose of generating and trans- mitting electricity for the supply of mines, cars, railroads, tramways, mills, and factories with electric power; and also for the supplying of electricity to light or heat mines, cars, mills, factories, incorporated cities and counties, villages or towns; and also for furnishing electricity for lighting, heating or power purposes to individuals or corporations, together with lands, buildings and all other Improvements in or upon which to erect, install, place, use or operate ma- chinery for the purpose of generating and transmitting electricity for any of the purposes or uses above set forth. 13. Electric power lines, electric heat lines; and electric light, heat and power lines. 14. Cemeteries for the burial of the dead, and enlarging and adding to the same and the grounds thereof. En. March 11, 1872. Am'd. 1873-4, 353; 1891, 48; 1893, 146; 1895, 89; 1897, 70; 1900-01, 72; 1905, 637. Cal. Rep. Cit. 51, 271; 51, 272; 65, 390; 69, 302; 79, 165; 87, 232; 91, 255; 143, 570. Subd. 3—62, 182; 62, 183; 67, 660; 92, 531; 95, 111; 95. 112; 98, 622; 119, 165; 132, 237. Subd. 4—53, 227; 56, 596; 76, 370; 79, 161; 79, 550; 97, 679; 111, 227; 134, 414; 136, 49; 144, 214. Subd. 5—51, 271; 51, 272; 63, 73; 73. 484; 73, 485; 108, 90. Subd. 8—91. 248; 91, 253. Eminent domain, generally: See Civ. Code, sec. 1001. Condemnation of state land for governmental purposes: rol. Code, sees. 33. 34. Road purposes: Pol. Code, sec. 2690. Toll-roads: Pol. Code, sec. 2787. Toll-bridge or ferry: Pol. Code, sec. 2855. Wharves, chutes, and piers: Pol. Code, sec. 2913. Reclamation purposes; Pol. Code, sec. 3471. Streets or alleys: Pol. Code. sec. 4372. § 1239. Estates subject to public use. The following Is n classification of the estates and rights In lands subject to be taken for public use: { 1240 ETMINENT DOMAIN. 472 1. A fee simple, when taken for public buildings or grounds, or for permanent buildings, for reservoirs and dams, and permanent flooding occasioned thereby, or for an outlet for a flow, or a place for the deposit of debris or tailings of a mine. 2. An easement, when taken for any other use. 3. The right of entry upon and occupation of lands, and the right to tiake therefrom such earth, gravel, stones, trees, and timber as may be necessary for some public use. En. March 11, 1872. Am'd. 1873-4, 355. Cal. Rep. Cit. 5G, 10; G2, 183; 62, 184; G7, 60; 67. 660; 92, 531; 124, 616. Subd. 3—111, 229. § 1240. Private property defined. Classes enumerated. The private property which may be taken under this title Includes; 1. All real property belonging to any person; 2. Lands belonging to this state, including tide and submerged lands, not within the corporate limits of any city, or city and county, or to any county, incorporated city, or city and county, village or town, not appropriated to some public use; 3. Property appropriated to public use; but such prop- erty shall not be taken unless for a more necessary pub- lic use than that to which it has been already appropri- ated. 4. Franchises for toll roads, toll bridges, and ferries, and all other franchises, but such franchises shall not be taken unless for free highways, railroads, or other more necessary public use; 5. All rights of way for any and all the purposes men- tioned In section twelve hundred and thirty-eight, and any and all structures and Improvements thereon, and the lands held or used in connection therew^ith shall be sub- ject to be connected with, crossed, or intersected by any other right of way or improvements, or structures there- on. They shall also be subject to a limited use. In com- mon with the owner thereof, when necessary; but such uses, crossings. Intersections and connections shall be made in manner most compatible with the greatest pub- lic benefit and least private injury. No railroad main track crossing, outside the limits of any incorporated town, city or city and county, shall be at grade, unless the party proposing such crossing at grade shall, at its own sole cost and expense, protect such crossing by the construction, operation and mainte- nance of an interlocking plant, with suitable signals and 473 EMINENT DOMAIN. I 12« derails; but either party to such crossing may insist upon a separation of grades, in which case the cost of con- structing such creasing witli separate grades shall be equally divided between the railroad companies con- cerned; and provided further that where any such cross- ing has been constructed at grade, either company may, at any time thereafter, require a separation of the grades at such crossing, each company paying one-half of the expense of such separation; and provided further that the foregoing provisions shall not be construed as requiring a separation of grades where such separation is physi- cally impracticable, and in case of any dispute or con- troversy as to the physical practicability of any under- grade or overhead crossing, the same shall be determined by the superior court of the county in which such cross- ing is situate in an action or proceeding brought by either party for that purpose. 6. All classes of private property not enumerated may be taken for public use, when such taking is authorized by law; 7. Proceedings to condemn lands belonging to this state are hereby authorized, and must be maintained and conducted in the same manner as are other condemnation proceedings provided for in this title; except, that in such proceedings the sumnions and a copy of the complaint must be served on the governor, attorney-general and sur- veyor general of this state. En. March 11, 1872. Am'd. 1900-01, 307; 1905, 126. Cal. Eep. Cit. 62, 183; 111, 230. Subd. 1—14.5, 587; 145, 588. Subd. 2.— 145, 587; 145, 588. Subd. 3— 111, 227; 145, 587; 145, 588. More necessary public use: Post, sec. 1241, subd. 3. Crossings: Post, sec. 1247, subd. 1. § 1241. Facts necessary to be found by court before condemnation. Before property can be taken, it must ap- pear: 1. That the use to which it is to be applied is a use authorized by law; 2. That the taking is necessary to such use; 3. If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use. En. March 11, 1872. Cal. Eep. Cit. 50, 506; 64, 131; 67, 62; 68, 63; 71, 480; 79, 161; 91, 253. Subd. 3—91, 256. {S 1242, 1244 EMINENT DOMAIN. 474 § 1242. Parties may make location. iVIay enter to make surveys. In all cases where land Is required for public use, the state, or its agents in charge of such use, may survey and locate the same; but it must be located in the manner which will he most compatible, with the greatest public good and the least private injury, and subject to the provisions of section twelve hundred and forty-seven. The state, or its agents in charge of such public use, may enter upon the land and make examination, surveys and maps thereof, and such entry shall constitute no cause of action in favor of the owners of the land, except for injuries resulting from negligence, wantonness, or malice. En. March 11, 1872. Cal. Rep. Cit. 76, 412; 76, 413; 91, 255; 122, 603; 129, 11; 133, 399. State or its agents: Civ. Code, sec. 1001. § 1243. Jurisdiction In superior court. All proceedings under this title must be brought in the superior court of the county in which the property is situated. They must be commenced by filing a complaint and issuing a sum- mons thereon. En. March 11, 1872. Am'd. 1880, 118. Cal. Rep. Cit. G5, 395; 65, 410; 74, 203; 76, 410; 83, 496; 83, 497; 87. 231; 106, 205; 124, 647; 134, 589; 138. 580; 138, 582. Complaint: Post, sec. 1244; generally: Ante, sec. 426. Summons: Post, sec. 1245; generally: Ante, sees. 406 et seq. § 1244. The complaint and its contents. The complaint must contain: 1. The name of the corporation, association, commis- sion, or person in charge of the public use for which the property is sought, who must be styled plaintiff. 2. The names of all owners and claimants of the prop- erty, if known, or a statement that they are unknown, ■who must be styled defendants. 3. A statement of the right of the plaintiff. 4. If a right of way be sought, the complaint must show the location, general route, and termini, and must be accompanied with a map ther&of, so far as the same is involved in the action or proceeding. 5. A description of each piece of land sought to be taken, and whether the same includes the whole or only a part of an entire parcel or tract. All parcels lying in the county, and required for the same public use, may be included in the same or separate proceedings, at the op- 475 EMINENT DOIkLVm. SS 1245-124^ tion of the plaintiff, but the court may consolidate or separate them to suit the convenience of parties. When application for the condemnation of a right of way for the purposes of sewerage is made on behalf of a settlement, or of an incorporated village or town, the board of supervisors of the county may be named as plaintiff. En. March 11, 1872. Am'd. 1873-4, 355; 1880, 118. Cal. Rep. Cit. 67, 60; 67, 61; 67, 64; 83, 510; 87, 233; 124, 609; 132, 236; 134, 416. Subd. 4—91, 252; 122, 602; 134, 414. Subd. 5—76, 413; 122, 602. § 1245. Summons, what to contain. How issued and served. The clerk must issue a summons, which must con- tain the names of the parties, a general description of the whole property, a statement of the public use for which it is sought, and a reference to the complaint for descrip- tions of the respective parcels, and a notice to the de- fendants to appear and show cause why the property de- scribed should not be condemned as prayed for in the complaint. In all other particulars it must be in the form of a summons in civil actions, and must be served in like manner. En. March 11, 1872. Summons generally, contents: Ante, sees. 407 et seq.; service: Ante, sees. 410 et seq. § 1246. Who may defend. All persons in occupation of, or having or claiming an interest in, any of fhe property described in the complaint, or in the damages for the tak- ing thereof, though not named, may appear, plead, and defend, each in respect to his own property or interest, or that claimed by him, in like manner as if named in the complaint. En. March 11, 1872. Cal. Rep. Cit. 87, 255; 124, 609. Appearance, generally: Ante, sec. 1014. Answer, counterclaim, and cross-complaint: Ante, sees. 437-442. § 1247. Court shall have jurisdiction to regulate the mode of making crossings or of enjoying a common use. The court shall have power: 1. To regulate and determine the place and manner of making connections and crossings, or of enjoying the common use mentioned in the fifth subdivision of section twelve hundred and forty; 2. To hear and determine all adverse or conflicting ( 1248 EMINENT DOMAIN. 4/!t claims to the property sought to be condemned, and to the damages therefor; 3. To determine the respective rights of different par- ties seeking condemnation of the same property. En. March 11, 1872. Cal. Rep. Cit 76, 412; 124, G09; 124, 613. § 1248. Court or jury to assess damages. The coirrt, jvry, or referee must hear such le^ral testimony as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess: 1. The value of the property sought to be condemned, and all improvements thereon pertaining to the realty, and of each and every separate estate or interest therein; if it consists of different parcels, the value of each parcel and each estate or interest therein shall be separately as- sessed. 2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned, by rea- son of its severance from the portion sought to be con- demned, and the construction of the improvement in the manner proposed by the plaintiff. 3. Separately, how much the portion not sought to be condemned, and each estate or interest therein, will be benefited; if at all, by the construction of the improvement proposed by the plaintiff; and if the benefit shall be equal to the damages assessed under subdivision two, the owner of the parcel shall be allowed no compensation except the value of the portion taken; but if the benefit shall be less than the damages, so assessed, the former shall be deducted from the latter, and the remainder shall be the only dam- ages allowed in addition to the value. 4. If the property sought to be condemned be water or the use of water, belonging to riparian owners, or ap- purtenant to any lands, how much the lands of the riparian owner, or the lands to which the property sought to be condemned is appurtenant, will be benefited, if at all, by a diversion of water from its natural course, by the con- struction and maintenance, by the person or corporation in whose favor the right of eminent domain is exercised, of works for the distribution and convenient delivery of water upon said lands; and such benefit, if any, shall be deducted from any damages awarded the owner of such property. tn EMINENT DOMAIN. §§ 1249-1251 5. If the property sought to be condemned be for a rail- road, the cost of good and sufficient fences along the line of such railroad, and the cost of cattle-guards where fences may cross the line of such railroad. 6. As far as practicable, compensation must be assessed for each source of damages separately. En. March 11, 1872. Am'd. 1889, 343. Cal. Rep. Cit. 56, 9; 64, 111; 67, 64; 68, 63; 69, 206; 79, 551; 83, 514; 91, 452; 104, 27; 104, 28; 134, 415; 137, 622. Subd. 2—79, 550. Subd. 3—79, 550. Subd. 4— 64, 113. Subd. 5.-64, 112. Judgment of condemnation: Post, sec. 1253. Practice, etc.: Ante, sec. 1246; post, sees. 1256, 1257. Jury: Sec. 1256, infra. Value, etc.: Post, sec. 1249. § 1249. The date with respect to which compensation shall be assessed, and the measure thereof. For the pur- pose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the summons, and its actual value, at that date, shall be the measure of compensation for all property to be actually taken, and the basis of damages to property not actually taken but injuriously affected, in all cases' where such damages are allowed as provided in section twelve hun- dred and forty-eight. If an order be made letting the plaintiff into possession, as provided in section twelve hundred and fifty-four, the compensation and damages awarded shall draw lawful interest from the date of such order. No improvements put upon the property, subse- quent to the date of the service of summons shall be in- cluded in the assessment of compensation or damages. En. March 11, 1872. Cal. Rep. Cit. 61, 91; 68, 65; 74, 262; 83, 568; 124, 643; 124, 644; 124, 648. § 1250. New proceedings to cure defective title. If the title attempted to be acquired is found to be defective from any caiise, the plaintiff may again institute proceed- ings to acquire the same, as in this title prescribed. En. March 11, 1872. § 1251, Payment of damages or deposit of bond there- for. The plaintiff must, within thirty days after final judg- §§ 1252-1254 EMINENT DOM.UN. 478 ment, pay the sum of mouey assessed: but may, at the time of or before payment, elect to build the fences and cattle-guards; and if ho so elect, shall execute to the •de- fendant a bond, with aureties to be approved by the court in double the assessed cost of the same, to build such fences and cattlc-'guards within eighteen months from the time the railroad Is built on the land taken, and if such bon'd be given, need not pay the cost of such fences and cattle-gi.iards. in an action on such bond, the plaintiff may recover reasonable attorney's fees. En. March 11, 1S72. Cal. Rep. Cit. 64, 112; G4. 113; C5, 294; 67, 63; 104, 27; 129, 4t)7; 129, 408; 133, 7; 134, 416; 139, 132; 139, 138. § 1252. Damages, to whom paid. Payment may be made to the defendants entitled thereto, or the money may be deposited in court for the defendants, and be distributed to those entitled thereto. If the money be not so paid or deposited, the defendants may have execution as in civil cases; and if the money cannot be made on execution, the oourt, upon a showing to that effect, must set aside and annul the entire proceedings, and restore possession of the property to the defendant, if possession has been taken by the plaintiff. En. March 11, 1872. Cal. Rep. Cit. 64, 112; 67, 03; 78, 81; 78, 82; 129, 407; 133, 7; 139, 133. Payment, when to be made: Ante, sec. 1251; post, sec 1254. § 1263. Final order of condemnation, what to contain. When filed, title vests. When payments have been made, and the bond given, if the plaintiff elects to give one, as required by the last two sections, the court must make a final order of condemnation, which must describe the property condemned, and the purposes of such condemna- tion. A copy of the order must be filed in the office of the recorder of the county, and thereupon the property de- scribed therein shall vest in the plaintiff for the purposes therein specified. En. March 11, 1872. Cal. Rep. Cit. 64, 112; 67, 62; 78, 369; 132, 341; 133, 7; 134, 416; 141, 50. § 1254. Putting plaintiff in possession. At any time after trial and judgment entered or pending an appeal from the judgment to the supreme court, whenever the plaintiff m EMINENT DOMAIN. 5 vz5i shall have paid into court, for the defendant, the full amount of the judgment, and such further sum as may be required by the court as a fund to pay any further damages and costs that may be recovered in said proceeding, as well as all damages that may be sustained by the defendant, if, for any cause, the property shall not be finally taken for public use, the superior court in which the proceeding was tried may, upon notice of not less than ten days, authorize the plaintiff, if already in possession, to continue therein, and if not, then to take possession of and use the property during the pendency of and until the final conclusion of the litigation, and may, if necessary, stay all actions and proceedings against the plaintiff on account thereof. The defendant, who is entitled to the money paid into court for him upon any judgment, shall be entitled to demand and receive the same at any time thereafter upon obtaining an order therefor from the court. It shall be the duty of the cx)urt, or a judge thereof, upon application being made by such defendant, to order and direct that the money so paid into court for him be delivered to him upon his filing; a satisfaction of the judgment, or upon his filing a receipt therefor, and an abandonment of all defenses to the action or proceeding, except as to the amount of damages that he may be entitled to in the event that a new trial shall be granted. A payment to a defendant, as aforesaid, shall be held to be an abandonment by such defendant of all de- fenses interposed by him, excepting his claim for greater compensation. In ascertaining the amount to be paid into court, the court shall take care that the sajne be suf- ficient and adequate. The payment of the money into court, as hereinbefore provided for. shall not discharge the plaintiff from liability to keep the said fund full and without diminution; but such money shall be and remain, as to all accidents, defalcations, or other contingencies (as between the parties to the proceedings), at the risk of the plaintiff, and shall so remain until the amount of the com- pensation or damages is finally settled by judicial deter- mination, and until the court awards the money, or such ]>art thereof as shall be determined upon, to the defendant, and until he is authorized or required by rule of court to take it If, for any reason, the money shall at any time be lost, or otherwise abstracted or withdrawn, through no fault of the defendant, the court shall require the plaintiff to make and keep the sum good at all times until the liti- gation is finally brought to an end, and until paid over or made payable to the defendant by order of court, as above SS 1256-1257 EMINENT DOMAIN. 480 provided, and until such time or times the county clerk shall be deemed to be the custodian of the money, and shall be liable to the plaintiff upon his official bond for the same, or any part thereof, in case it be for any reason lost or otherwise abstracted or withdrawn. The court may order the money to be deposited in the state treasury, and in such case it shall be the duty of the state treasurer to re- ceive all such moneys, duly receipt for, and to safely keep the same in a special fund, to be entered on his books as a condemnation fund for such purpose, and for such duty he shall be liable to the plaintiff upon his official bond. The state treasurer shall pay out such money so deposited in such manner and at such times as the court or a judge thereof may, by order or decree, direct. In all cases where a new trial has been granted upon the application of the defendant, and he has failed upon such trial to obtain greater compensation than was allowed him upon the first trial, the costs of such new trial shall be taxed against him. En. March 11, 1872. Am'd. 1877-8, 108; 1880, 119; 1897, •186; 1903, 109. Cal. Rep. Cit. 47, 70; 47, 519; 47, 520; 47, 523; 49, 241; 53, 211; 65, 376; 77, 29; 78, 81; 78, 444; 78, 448; 83, 567; 95, 221; 95, 223; 103, 235; 104, 22; 104, 24; 133, 532; 137, 575; 137, 576; 137, 578; 138, 544; 141, 48. Interest: Ante, sec. 1249. § 1255. Costs may be allowed, apportionment thereof. Costs may be allowed or not, and if allowed, may be appor- tioned between the parties on the same or adverse sides, in the discretion of the court. En. March 11, 1872. Cal. Rep. Cit. 88, 67; 88, 68; 98, 262; 104, 22; 104, 23; 125, 106; 133, 7; 139, 136. § 1256. Rules of practice. Except as otherwise pro- vided in this title, the provisions of part two of this code are applicable to and constitute the rules of practice in the proceedings mentioned in this title. En. March 11, 1872. CaL Rep. Cit. 50, 506; 67, 62; 74, 265; 134, 377; 138, 582. Part two: Ante, sees. 307 et seq. § 1257. New trials and appeals. The provisions of part two of this code, relative to new trials and appeals, except «X EMINENT DOMAIN. 55 125S-11"61 in SO far as they are inconsistent with the provisions of this title, apply to the proceedings mentioned in this title; provided, that upon the payment of the sum of money as- sessed, and upon the execution of the bond to build the fences and cattle-guards, as provided in section twelve hundred and fiftj^-one, the plaintiff shall be entitled to enter into, improve, and hold possession of the property sought to be condemned (if not already in possession) as provided in section twelve hundred and fifty-four, and de- vote the same to the public use in question; and no motion for new trial or appeal shall, after such payment and fil- ing of such bond as aforesaid, in any manner retard the contemplated improvement. Any money which shall have been deposited, as provided in section twelve hundred and fifty-four, may be applied to the payment of the money assessed and the remainder, if any there be, shall be re- turned to the plaintiff. En. March 11, 1872. Am'd. 1877-8, 109; 1897, 188; 1903, 110. Cal. Rep. Cit. 59, SO; 104, 27. § 1258. When title takes effect, and construction of. With relation to the acts passed at the present session of the legislature, this title must be construed in the same manner as if this code had been passed on the last day of this session, and from and after the time this code takes effect, all laws of this state in relation to the taking of private property for public uses are abolished, and all proceedings had in the exercise of the powers of eminent domain must conform to the provisions of this title. Eu. March 11, 1872. § 1259. When title takes effect. Title seven of part three of the Code of Civil Procedure of the state of Cali- fornia (this title) shall be in force and effect from and after the fourth day of April, one thousand eight hundred and seventy-two. En. March 11, 1872. § 1260. Construction. From and after the time this title takes effect, it must be construed in the same man- ner as it would be were sections four and seventeen of this code in force and effect. En. March 11, 1872. § 1261, Pending proceedings not affected. No proceed- ing to enforce the right of eminent domain coiiimenced before this title takes effect is affected by the provisions of this title. En. March 11, 1872. Code CivU Proc— SI. S§ 1262-1264 EMINENT DOMAIN. 02 § 1262. Rules of practice. Until the first day of Janu- ary, one thousand eight hundred and seventy-three, at twelve o'clock noon, the provisions of sections twelve hundred and fifty-six and twelve hundred and fifty-seven of this title are suspended, and until then, except as other- wise provided in this title, the rules of pleading and prac- tice in civil actions now in force in this state are applica- ble to the proceedings mentioned in this title, and consti- tute the rules of pleading and practice therein. En. March 11, 1872. § 1263. Exceptions. Nothing In this code must be con- strued to abrogate or repeal any statute providing for the taking of property in any city or town for street pur- poses. En. March 11, 1872. Cal. Rep. Cit. 66, 506; 79, 161; 87, 231; 91, 247; 91, 248. § 1264. Preference of proceedings over other civil ac- tions. In all actions brought under the provisions of this title, to enforce the right of eminent domain, all courts wherein such actions are or may hereafter be pending, shall give such actions preference over all other civil ac- tions therein. In the matter of setting the same for hearing or trial, and in hearing the same, to the end that all such actions shall be quickly heard and determined. En. Stats. 1903, 165. ISa ESCHEATED ESTATES. SS 12ea, 12» TITLE VIIL OF ESCHEATED ESTATES, § 1269. Manner of commencing proceedings relative to escheated es- tates. § 1270. Rpctiver of rents and profits may be appointed. § 1271. Appearance, pleadings, aird trial. § 1272. Proceedings by persons claiming escheated estates. § 1269. Manner of commencing proceedings relative to escFieated estates. When the attorney general is informed that any real estate has escheated to this state, he must file an information in behalf of the state in the superior court of the county in which such estate, or any part thereof, is situated, setting forth a description of the estate, the name of the person last seised, the name of the occupant and person claiming such estate, if known, and the facts and circumstances in consequence of which the estate is claimed to have escheated, with an allegation that, by reason thereof, the state of California has right by law to such estate. Upon such information, a summons must issue to such person, requiring him to appear and answer the information within the time allowed by law in civil actions; and the court must make an order setting forth briefly the contents of the information, and requir- ing all persons interested in the estate to appear and show cause, if any they have, within forty days from the date of the order, why the same should not vest in this state; which order must be published for at least one month from the date thereof, in a newspaper published in the county, if one be published therein, and in case no newspaper is published in the county, in some other newspaper in this state. En. March 11, 1872. Am'd. 1880, 110. Cal. Rep. Cit. 65, 595; 67, 381; 67, 385; 110, 410; 143, 140; 143, 141; 143, 197; 143. 198; 143, 201; 143, 202; 143, 205; 143, 206; 143, 207. Property, when escheats: Pol. Code, sec. 41. Duty of attorney general: Pol. Code, sec. 474. Unclaimed realty of nonresident aliens escheats to state: Civ. Code, sec. 672. § 1270. Receiver of rents and profits may be appointed. The court, upon the information being filed, and upon the application of the attorney general, either before or after I 1271 ESCHEATED ESTATES. «« answer, upon notice to the party claimin'g such estate If known, may, upon sufficient cause therefor being shown, appoint a receiver to take charge and receive the rents and profits of the same until the title to such real estate Is finally settled. En. March 11, 1872. Cal. Rep. Clt. 143, 140; 143, 141; 143, 197; 143, 198; 143, 201; 143, 202; 143, 205; 143, 206; 143, 207. Appointment of receiver: See generally, ante, sees. 564- 569. § 1271. Appearance, pleadings, and trial. All persons namod in the Information may appear and answer, and may traverse or deny the facts stated in the Information, the title of the state to lands and tenements therein mentioned, at any time before the time for answering expires, and any other person claiming an interest In such estate may appear and be made a defendant, and by motion for that purpose In open court within the time allowed for an- swering; and if no person appears and answers within the time, then judgment must be rendered, that the state be seised of the lands and tenements in such Information claimed. But if any person appear and deny the title set up by the state, or traverse any material fact set forth In the Information, the Issua of fact must be tried as issues of facts are tried In civil actions. If, after the Issues are tried. It appears from the facts found or admitted that the state has good title to the land and tenements in the information mentioned, or any part thereof. Judgment must be ren- dered that the state be seised thereof, and recover costs of suit against the defendants. In any judgment rendered, or that has heretofore been rendered by any court of compe- tent jurisdiction, escheating real property to the state, on motion of the attorney general, the court shall make an or- der that said real property be sold by the sheriff of the county where the same is situate, at public sale, for gold coin, after giving such notice of the time and place of sale as may be prescribed by the court in the said order; that the sheriff shall, within five days after such sale, make a report thereof to the court, and upon the hearing said report, the court may examine the said report and witnesses In relation to the same, and if the proceed- ings were unfair, or the sutq bid disproportionate to the value, and If it appear that a sum exceeding such bid at least ten per cent, exclusive of the expense of a new sale, may be obtained, the court may vacate the sale, and 48S ESCHEATED ESTATES. g 1271 direct another sale to be had, of which notice must be given, and the sale In all respects conducted as If no previous sale had taken place. If an offer of ten per cent more in amount than that named in the report be made to the court in writing, by a responsible person, the court may, in its discretion, accept such offer, and confirm the sale to such person, or order a new sale. If it appears to the court that the sale ■was legally ma-de, and fairly con- ducted, and that the sum bid is not disproportionate to the value of the property sold, and that a greater sum than ten per cent, exclusive of the expense of a new sale, cannot be obtained, or if the Increased bid above mentioned be made and accepted by the court, the court must make an order confirming the sale, and directing the sheriff, in the name of the state, to execute to purchaser or purchasers a conveyance of said property sold; and said conveyance shall vest in the purchaser or purhasers all the right and title of the state therein, and the sheriff shall, out of the proceeds of such sale, pay the cost of said proceedings incurred on behalf of the state, Including the expenses of making such sale, and also an attorney's fee, if additional counsel was employed in said proceedings, to be fixed by the court, not exceeding ten per cent on the amount of such sale, and the residue thereof shall be paid by said sheriff Into the state treasury. En. March 11, 1872. Am'd. 1881, 11. Proceedings, appearance: Ante, sec. 1014; answer: Ante, sec. 437; judgment: Ante, sees. 585, 664; trial: Ante, sees. 600-645; issue of fact: Ante, sees. 590, 592; costs: Ante, Bees. 1021 et seq. § 1272. Proceedings by persons claiming escheated es- tates. Within twenty years after judgment In any pro- ceeding had under this title, a person not a party or privy to such proceeding may file a petition In the superior court of the county of Sacramento, showing his claim or right to the property, or the proceeds thereof. A copy of such petition must be served on the attorney general at least twenty days before the hearing of the petition, who must answer the same; and the court thereupon must try the Issue as issues are tried in civil actions, and If it be de- termined that such person is entitled to the property, or the proceeds thereof, it must order the property, If It haa not been sold, to be delivered to him, or if it has been sold and the proceeds paid into the state treasury, then it must order the controller to draw his warrant on the treasury 5 J 1275, 1276 CHANGE OF NAMES. 486 for the payment of the same, but without Interest or cost to the state, a copy of which order, under the seal of the court, shall be a sufficient voucher for drawing such war- rant. All persons who fall to appear and file their petitions within the time limited are forever barred, saving, how- ever, to infants, married women, and persons of unsound mind, or persons beyond the limits of the United States, the right to appear and file their petitions at any time within the time limited, or five years after their respective disabilities cease. En. March 11, 1872. Am'd. 1880, 110. Cal. Rep. Clt. 65, 595; 67, 381; 67, 383; 67, 386; 70, 157; 143, 140; 143, 141; 143, 197; 143, 198; 143, 201; 143, 202; 143, 205; 143, 206; 143, 207. TITLE IX. OF CHANGK OF NAMES. § 1275. Jurisdiction. I 1276. Application for change of name, how made. § 1277. Order to show cause; publication; proof of publication. 5 1278. Hearing of application and remonstrajice ; corporations; change of name. g 1279. Return by county clerk. § 1275. Jurisdiction. Applications for change of names must be heard and determined by the superior courts. En. March 11, 1872. Am'd. 1880, 117. Cal. Rep. Clt. 128, 526; 123, 624. § 1276. Application for change of name, how made. All applications for change of names must be made to the Buperior court of the county where the person whose name Is proposed to be changed resides, by petition, signed by such person; and if such person is under twenty-one years of age, if a male, and^nder the age of eighteen years of age, if a female, by one of the parents, if living, or if both be dead, then by the ■guardian; and if there be no guardian, then by some near relative or friend. The petition must specify the place of birth and residence of such person, his or her present name, the name proposed, and the reason for such change of name, and must, if the father of such person be not living, name, as far as known to the pe- titioner, the near relatives of such person, and their place of residence. Any religious, benevolent, literary, scien- tific, or other corporation, or any corporation bearing or having for its name, or using or being known by the name — 140, 208; Subd. 3—140, 208. 491 ARBITRATIONS. 88 1288-1290 Prae. Act, sec. 886. En. April 29, 1851. Cal. Eep. Cit. 38, 287. Eeferee's reports: Ante, sees. 643-645. § 1288. Court may, on motion, modify or correct the award. The court may, on motion, modify or correct the award, where it appears: 1. That there was a mii^calculation in figures upon which it was made, or that there is a mistake in the de- scription of some person or property therein; 2. When a part of the award is upon matters not sub- mitted, which part can be separated from other parts, and does not affect the decision on the matters submitted; 3. When the award, though imperfect in form, could have been amended if it had been a verdict, or the imper- fection disregarded. En. March 11, 1872. Cal. Rep. Cit. 96, 620; 128, 282. Prac. Act, sec. 387. En. April 29, 1851. Cal. Rep. Cit 3S, 2«'7. § 1289. Decision, on motion, subject to appeal, but not the judgment entered before motion. The decision upon the motion is 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 made cannot be subject to appeal. En. March 11, 1872. Cal. Rep. Cit. 128, 281; 140, 211. Prac. Act, sec. 388. En. April 29, 1851. Cal. Rep. Cit 88, 286; 42, 128. Motion to vacate or modify award: Ante, sees. 1287 1288. Appealable orders: Ante, sec. 939. § 1290. If submission be revoked and an action brought, what to be recovered. If a submission to arbitration be revoked, and an action be brought therefor, the amount 1o be recovered can only be the costs and damages sus- tained in preparing for and attending the arbitration. En, March 11, 1872. Cal. Rep. Cit 96, 619. Prac. Act, sec. 389. En. April 29, 1851, i 1294 JURISDICTION. TITLE XI. OF PROCEEDINGS IN PROBATE COURTS. Chapter I. Of Jurisdiction, §§ 1294-1295. II. Of the Probate of Wills, §§ 1298-1346. ni. Of Executors and Administrators, Their Let- ters, Bonds, Rej.'M>vals, and Suspensions, §§ 1348-1440. IV. Of the Inventory and Collection of the Effects of Decedents, §§ 1443-1461. V. Of the Provisions for Support of Family, and of the Homestead, g§ 1464-1486. VI. Of Claims Against the Estate, §§ 1490-1514. VII. Of Sclles and Conveyance of Property of Decedents, §§ 1516-1579. VIII. Of the Powers and Duties of Executors and Administrators, and of the Management of Estates, §§ 1581-1591. IX. Of the Conveyance of Real Estate by Execu- tors and Administrators in Certain Cases, §§ 1597-10:. 7. X. Of Accounts Rendered by Executors and Ad- ministrators, and of the Payment of Dsbts, §§ 1612-1653. XI. Of the Partition, Distribution and Final Set- tlement of Estates, §§ 1658-1703%. XII. Of Orders, Decrees, Process, Minutes, Records, Trials, and Appeals, §§ 1704-1723. XIII. Of Public Administrator, §§ 1726-1744. XIV. Of Guardian and Ward, §§ 1747-1810. CHAPTER I. OF JURISDICTION. § 1294. Jurisdiction of probate court over the estate, when exercised. § 12S5. When jurisdiction deci^3ed by first application. § 12S4. Jurisdiction of probate court over the estate, v\'hr-n exercised. Wills must be proved, and letters tejla- u.c:->.:i;y or of administration granted: 498 JURISDICTION. 8 1295 1. In the county of which the decedent waa a resident at the time of his death, in whatever place he may have died; 2. In the county in which the decedent may have died, leaving estate therein, he not being a resident of the Btate; 8. In the county in which any part of the estate may be, the decedent having died out of the state, and not resident thereof at the time of his death; 4. In the county in which any part of the estate may be, the decedent not being a resident of the state, and not leaving estate in the county in which he died; 5. In all other cases, in the county where application for letters is first made. En. March 11, 1872. Cal. Rep. Cit. 70, 407; 70, 411; 71, 522; 109, 253. Prob. Act, sec. 2. En. April 22, 1850. Eep. 1851, 489, En. 1851, 448. Am'd. 1861, 628. Probate matters, jurisdiction of superior courts in: Ante, Bee. 76, subd. 4. § 1295. When Jurisdiction decided by first application. When the estate of the decedent is in more than one county, he hajving died out of the state, and not having been a resident thereof at the time of his death, or being Buch nonresident, and dying within the state, and not leaving estate in the county where he died, the superior court of that county in which application is first made, for letters testamentary or of administration, has exclusive jurisdiction of the settlement of the estate. En. March 11, 1872. Am'd. 1880, 77. Prob. Act, sec. 3. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 628 j 1864, 867. |§ 1298, 1239 PUOCATE OF WILLS. 49* CHAPTER II. OF THE PROBATE OF WILLS. ArtJcl« I. P«tmon, Notice, and Proof, §§ 129S-1309. IJ. Contesting Probate of Will, §§ 1312-131S 2IL Probate of Foreign Wills, §§ 1322-1:524. rw. ContesUng "Will after Prob.ile, §§ 1327-1333. y. Probate of Lost or Destroyed Will, §§ 133S-1341. VL FmbaXa of Nuncupative Wills, §§ 1344-1346. ARTICLE I. FETITION, NOTICE, AND PROOF. § 7298. Cnsrtodlan of will to deliver same, to whom. § 12'j9. Who may fietition for probate of will, f 13*10. Contents of petition. 5 ISOl. When executor forfeits right to letters. I 1302. Possession of will by third person. Production of. § 1303. Notice of petition for probate, how given. § 1304. Heirs and named executors to be notified, how. § 1305. Order to enforce production of wills or attendance of wit- nesses. § 1306. Hearing proof of will after proof of service of notice. § 1307. Who may appear and contest the will. § 1308. Probate, when no contest. § 1309. Olographic wills. § 1298. Custodian of will to deliver same, to whom. Every custodian of a will, within thirty days after re- ceipt of information that the maker thereof is dead, must deliver the same to the superior come having jurisdiction of the estate, or to the executor named therein. A failure to comply with the provisions of this section makes the person failing responsible for all damages sustained by anyone injured thereby. En. March II, 1872. Am'd. 1880, 77. Prob. Act, sec. 4. En. April 22, 1850. Eep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 22, 397. Prob. Act, sec. 7. En. April 22, 1850. Eep. 1851, 489. En. 1851, 448. § 1299. Who may petition for probate of will. Any executor, devisee, or legatee named in any will, or any other person interested in the estate, may, £tt any time after tke death of the testator, petition the court having 4!6 PROBATE OF WILLa 5§ 1300-1302 Jurisdiction to have the will proved, whether the same be in writing, in his possession or not or is lost or destroyed, or beyond the jurisdiction of the state, or a nuncupative wilL En. March 11, 1872. Cal. Rep. Cit. 93, 620; 120, 451; 135, 677; 145, 87. Prob. Act, sec. 5. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit 22, 66; 22, 397. Prob. Act, sees. 89. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1300. Contents of petition. A petition for the probate of a will must show: L The jurisdictional facts. 2. Whether the person named as executor consents to act, or renounces his right to letters testamentary. 3. The names, ages, and residence of the heirs and devisees of the decedent, so far as known to the petitioner. 4. The probable value and character of the property of the estate. 5. The name of the person for whom letters testamentary are prayed. No defect of form, or in the statement of jurisdictional facts actually existing, shall make void the probate of a will. En. March 11, 1872. Am'd. 1873-4, 356. Cal. Rep. Cit 70, 142; 93, 620. Prob. Act sec. 6. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 629. Cal. Rep. Cit 22, 66; 22, 397. § 1301. When executor forfeits right to letters. If the person named in a will as executor, for thirty days after he has knowledge of the death of the testator, and that he is named as executor, fails to petition the proper court for the probate of the will, and that letters testamentary be issued to him, he may be held to have renounced his right to letters, and the court may appoint any other competent person administrator, unless good cause for delay is shown. En. March 11, 1872. Cal. Rep. Cit 118, 280. § 1302. Possession of will by third person. Production of. If it is alleged in any petition that any will is in the 5 1303 PROBATE OF WII^I^. •• possession of a third person, and the court is satisfied that the allegation is correct, an order must be issued and served upon the person having possession of the will, requiring him to produce it at a time named in the order. If he has possession of the will, and neglects or refuses to produce it in obedience to the order, he may, by war- rant from the court, be committed to thp jail of the county, and be kept in close confinement until he pro- duces it. En. March 11, 1872. Prob. Act, sec. 10. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Prob. Act, sec. 11. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Probate orders and citations: Post, sees. 1704-1711. Imprisonment until order obeyed: Ante, sec. 1219. 5 1303. Notice of petition for probate, how given. When the petition is filed and the will produced, the clerk of the court must set the petition for hearing by the court upon some day not less than ten nor more than thirty days from the production of the will. Notice of the hear- ing shall be given by such clerk by publishing the same in a newspaper of the county; if there is none, then by three written or printed notices posted at three of the most public places in the county. If the notice is pub- lished in a weekly newspaper, it must appear theroin on at least three different days of publication; and if in a newsi>aper published oftener than once a week, it shall be so published that there must be at least ten days from the first to the last day of publication, both the lirst and the last day being included. If the notice is by posting, it must be given at least ten days before the hearing. En. March 11, 1872. Amd. 1880, 77; 1881, 23. Cal. Rep. Cit. 93, 620; 101, 668; 109, 28; 129, 152; 136, 595; 141, 332. Prob. Act, sec. 13. En. April 22, 1850. Rep. 1851, 489. En. 1851. 448. Am'd. 1861, 629; 1866, 765. Cal. Rep. Cit 22, 66; 22, 397; 39, 554. Prob. Act, sec. 16. En. April 22, 1850. Rep. 1851, 489, En. 1851, 448. Am'd. 1861, 629. Publication of notice: Sec. 1705. Affidavit of publication: Post, sees. 2010, 2011. 491 PROBATE OF WILLS. §§ 1304-130« § 1304. HeFrs and named executors to be notified, liow. Copies of the notice of the time appointed for the probate of the will must be addressed to the heirs of the testator resident in the state, at their places of residence, if known to the petitioner, and deposited in the postofflce, with the postage thereon prepaid, at least ten days before the hearing. If their, places of residence be not known, the copies of notice may be addressed to them, and de- posited in the postofEice at the county seat of the county where the proceedings are pending. A copy of the same notice must in like manner be mailed to the person named as executor, if he be not the petitioner; also, to any person named as coexecutor not petitioning, if their places of residence be known. Proof of mailing the copies of the notice must be made at the hearing. Personal service of copies of the notice at least ten lays before the day or hearing Is equivalent to mailing. En. March 11, 1872. Am'd. 1878-4, 857. Cal. Rep. Cit. 101, 668; 109, 28; 120, 851; 120, 430; 138, 595. Prob. Act, sec. 14. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit 46, 316; 91, 634. Prob. Act, sec. 15. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1305. Order to enforce production of wills or attend- ance of witnesses, A judge of the superior court may at any time make and issue all necessary orders and writs to enforce the production of wills and the attendance of witnesses. En. March 11. 1872. Am'd. 1880, 78; 1891, 427. Prob. Act, sec. 12. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 629. Probate powers at chambers: Ante, sec. 166. Probate orders and processes: Post, sees. 1704 et seq. § 1306. Hearing proof of will after proof of service of notice. At the time appointed for the hearing, or the time to which the hearing may have been postponed, the court unless the parties appear, must require proof that the notice has been given, which being made, the court must hear testimony in proof of the will. En. M^'rch 11, 1872. Am'd. 1873-4, 357. Cal. Rep. Cit. 49, 604; 101, 069; 113, 376. Ood« ClvU Proc.— 32. {{ 1307, 1308 PROBATE OF WILLS. M Prob. Act, sec. 17. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 18G1, 629. Testimony In proof of the will: Post, sees. 1308, 1309, 1815, 1316. B 1307. Who may appear and contest the will. Any person interested may appear and contest the will. Dev- isees, legatees, or heirs of an estate may contest the will through their guardians, or attorneys appointed by themselves or by the court for that purpose; but a con- test made by an attorney appointed by the court does not bar a contest after probate by the party so represented, if commenced within the time provided in article four of this chapter; nor does the nonappointment of an attor- ney by the court of itself invalidate the probate of the will. En. March 11, 1872. Am'd. 1873-4, 357. Cal. Rep. Cit. 54, 557; 74, 59; 98, 106; 101, 612; 122, 163; 140, 433. Prob. Act, sec. 18. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, G30. Contest: Sees. 1312 et seq. Guardians: Sees. 372, 373, 1747-1809. Attorney appointed by the court: Sec. 1718. § 1308. Probate of wills not contested. If no person ap- pears to contest the probate of a will, the court may admit it to probate on the testimony of one of the subscribing witnesses only, If he testifies that the will was executed in all particulars as required by law, and that the testator was of sound mind at the time of its execution. If it ap- pears at the time fixed for the hearing that none of the subscribing witnesses reside In the county, but that the deposition of one of them can be taken elsewhere, the court may direct it to be taken, and may authorize a photographic copy of the will to be made and to be pre- sented to such witness on his examination, who may be asked the same questions with respect to it and the hand- writing of himself, the testator, and the other witness, as would be pertinent and competent if the original will were present. If neither the attendance in court nor the depo- sition of any of the subscribing witnesses can be pro- cured, the court may admit the will to probate upon the testimony Qf any other witness as provided in section thirteen hundred and seventeen. En. March 11, 1872. Am'd. 1905, 234. Ca.1. Rep. Cit. 73, 566; 140, 432. 499 PnODATE OF WILLS. J§ 1309, 13ia Prob. Act, sec. 19. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Admitting to prabate, v/here contest: Ante, sees. 1314, 1317, 1318; conclusiveness of: Post, sec. 1908, subd. 1. § 1309. Olographic wills. An olographic will may be proved in the same manner that other private writings are proved. En. March 11, 1872. Cal. Rep. Clt. 100, 207; 145, 85; 145, 409. Private writings, iic-w proved: Post, sec. 1940. ARTKJLE II. CONTESTINQ PKOBATE OF WILLS. g 1818. Contestant to file grouzMl« of contest, aad petitioner to reply. 1 1318. How Jury obtained and trial had. § 1314. Verdict of the Jury. JuJjrmejit. 2 1315. Witnesses, who ami 'aow many to be examined. Proof of h^d- ^vrltlnff, adroi'ited, whin. 1316. Testimony reduced to 'writing for future evidence. 1817. If proved, certlfio»-t-9 to be attached. 1318. Will and proof to t»d filed and recorded. § 1312. Contestant to file grounds of contest, and peti- tioner to reply. If anyone appears to contest the will, he must file written grounds of opposition to the probate thereof, and serve a copy on the petitioner and other resi- dents of the county interested in the estate, any one or more of whom may demur thereto upon any of the grounds of demurrer provided for in part two, title six, chapter three, of this code. If the demurrer is sustained, the court must allow the contestant a reasonable time, not exceeding ten days, within which to amend his writ- ten opposition. If the demurrer is overruled, the peti- tioner and others interested may jointly or separately answer the contestant's grounds, traversing or otherwise obviating or avoiding the objections. Any issues of fact thus raised, involving: 1. The competency of the decedent to make a last will and testament; 2. The freedom of the decedent at the time of the exe- cution of the will from duress, menace, fraud, or undue influence; 3. The due execution and attestation of the will by the decedent or subscribing witnesses; or, 4. Any other questions substantially affecting the validity of the will; §§ 1313, 1314 PROBATE OF WILL-S. 600 — Must, on request of either party in writing, (filed three days prior to the day set for the hearing), be tried by a jur>'. If no jury is demanded, the court must try and determine the issues joined. On the trial, the con- testant is plaintiff and the petitioner is defendant. En. March 11. 1872. Cal. Rep. Cit. 56, 324; 56, 325; 63, 37; 67, 445; 73. 566; 73, 567; 73, 569; 74, 205; 74, 206; 74, 207; 74, 209; 74, 355; 98, 105; 100, 249; 101, 612; 106, 495; 118, 661; 131, 474; 140, 129; 140, 420; 140, 421; 140, 427; 140, 428; 140, 429; 140, 438. Subd. 1—72, 132; 79, 316. Subd. 4—67, 445; 70. 142; 128, 62; 133, 136; 133, 585; 140, 419. Prob. Act, sec. 20. En. April 22, 1850. Rep. 1851, 489. En. 1851. 448. Am'd. 1855, 132; ISCl, 030; 1868, 628. Cal. Rep. Cit. 34, 688; 35, 510; 35. 511; 46, 247; 74, 207. Contestant: Ante, sec. 1307. Contest, after probate: Post, sees. 1327 et seq.; throu-gh attorney appointed by the court: Ante, sec. 1307. Execution, witnesses to be called: Post, sec 1315, Grounds of demurrer: Ante, sees. 430-434. Service, etc.: Ante, sees. 1010-1017. S 1313. How jury obtained and trial had. When a jury is demanded, the superior court may impanel a jury to try the cAse, in the manner provided for impaneling trial juries in courts of record, and the trial must be conducted in accordance with the provisions of part two, title eight, chapter four, of this code. A trial by the court must be conducted as provided in part two, title eight, chapter five, of this code. En. March 11, 1872. AmM. 1880, 78. Trial juries, in courts of record, summoning: Ante. sees. 225-228; impaneling: Ante, sees. 246, 247. Conduct of trial: Ante, sees. 600-G28. Trial by the court: Ante, sees. 631-636. Transfer of proceeding: Ante. sees. 397, 398; post, 1430- 1433. § 1314. Verdict of the jury. Judgment The jury, after hearing the case, must return a special verdict upon the Issues submitted to them by the court, upon which the judgment of the court must be rendered, either admitting the will to probate or rejecting it. In either ease, the proofs of the subscribing witnesses must be reduced to writing. If the will is admitted to probate, the judgment, will, and proofs must be recorded. En. March 11, 1872. BOl PROBATE OF WILLS §§ 1315-1317 Cal. Rep. Cit. 74, 208; 74. 209; 74, 355; 118, CGI; 131, 474. Verdict, generally: Ante, sees. 624-628. Proofs reduced to writing: Post, sec. 1316. § 1315. Witnesses, who and how many to be examined. Proof of handwriting, admitted, when. If the will is con- tested, all the subscribing witnesses who are present in the county, and who are of sound mind, must be produced and examined; and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If none of the subscribing witnesses reside in the county at the time appointed for proving the will, the court may admit the testimony of other witnesses to prove the sanity of the testator and the execution of the will; and as evidence of the execution it may admit proof of the handwriting of the testator and of the subscribing witnesses, or any of them. En. March 11, 1872. Cal. Rep. Cit. 58, 337; 121, 407; 121. 409; 140, 432. Prob. Act, sec. 21. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Prob. Act, sec. 22, En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Writings, proof of execution: Post, sec. 1940. Witnesses, generally: Post, sees. 1878-1884; attendance of, procuring: Post, sees. 1985 et seq. § 1316. Testimony reduced to writing for future evi- dence. The testimony of each witness, reduced to writing and si-gned by him, shall be good evidence in any subse- quent contests concerning the validity of the will, or the sufficiency of the proof thereof, if the witness be dead, or has permanently removed from this state. En, March 11, 1872. Prob. Act, sec, 23. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit 22, 69. § 1317. If proved, certificate to be attached. If the court is satisfied, upon the proof taken, or from the facts found by the jury, that the will was duly executed, and that the testator at the time of its execution was of sound and disposin-g mind, and not acting under duress, menace, fraud, or undue influence, a certificate of the proof and the facts found, signed by the judge, and attested by the seal of the court, must be attached to the will. En. March 11, 1872. Am'd. 1880, 78. Cal. Rep. Cit 73, 572; 140, 432. §§ 1318-1323 PROBATE OF WILLS. »02 Prob. Act, sec. 24. En. April 22, 1850. Rep. 1S51, 489. En. 1851, 448. Am'd. 1S55, 132. Cal. Rep. Cit. 22, G9. Seal required: Ante, sec. 153, subd. 2. S 1318. Will and proof to be filed and recorded. The will and a certificate of the proof thereof, must be filed and lecorded by the clerk, and the same, when so filed and re- corded, shall constitnte part of the record in the cause or proceeding. All testimony shall be filed by the clerk. En. March 11, 1872. Am'd. 1880, Gl. Cal. Rep. Cit. 56, 324. Prob. Act, sec. 25. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. CaL Rep. Cit 22, 69. ARTICLE m. PROBATE OF FOREIGN WILLS. § 1SS2. Wills proved in other states to be recorded when and where. § 1323. Proceedings on the production of a foreign will. 5 1324. Hearfngr proofs of probate of foreign will. § 1322. Wills proved in other states to be recorded when and where. All wills duly proved and allowed in any other of the United States, or in any foreign county or state, may be allowed and recorded in the superior court of any county in which the testator shall have left any es- tate. En. March 11, 1872. Am'd. 1880, 78. Cal. Rep. Cit. 86, 101; 86, 103; 100, 377; 120, 345; 132. 403; 141, 540. Prob. Act, sec. 27. Ehi. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1863, 37. § 1323. Proceedings on the production of a foreign will. When a copy of the will and the probate thereof, duly authenticates!, shall be produced by the executor, or by any other person interested in the will, with a petition for let- ters, the same must be filed, and the court or judge must appoint a time for the hearing: notice whereof must be given as hereinbefore provided for an original petition for the probate of a will. En. March 11, 1872. Cal. Rep. Cit 86, 101; 86, 102; 100, 377; 120, 345; 120, 346; 124, 293; 141, 540. 603 • PROBATE OF WII.L3. 55 1324, 1321 Prob. Act, sec. 28. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 18G1, G30; 18G4, 367. Cal. Rep. Cit. 39, 554. Foreign executor, no extraterritorial authority: Post, sec. 1913. Notice as for an original petition: Ante, sees. 1303 et Beq. Attorney for absent heirs: Post, sec. 1718. Petition, notice, etc.: Ante, sees. 1299-1318. § 1324. Hearing proofs of probate of foreign will. If , on the hearing, it appears upon the face of the record that the will has been proved, allowed, and admitted to probate In any other of the United States, or in any foreign country, and that it was executed according to the la-w of the place in which the same was made, or in which the testator was at the time domiciled, or in conformity with the laws of this state, it must be admitted to probate and have the same force and effect as a will first admitted to probate in this state, and letters testamentary or of administration is- sued thereon. En. March 11, 1872. Cal. Rep. Cit. 86, 101; 86, 102; 100, 377; 120, 345; 132, 403; 141, 540. Prob. Act, sec. 29. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 630; 1864, 368. Letters testamentary or of administration: Post, sees. 1349-1362. ARTICLE IV. CONTESTING WILL AFTER PROBATB. § 1327. The probate may be contested within one year. § 1328. Citation \.o be issued to parties interested. § 1329. The hearing had on proof of service. § 1330. Petitions to revoke probate of will tried by jury or court. Judgment, what. 5 1331. On revocation of probate, powers of executor, etc, cease, but not liable for acts in good faith. 5 1332. Costs and expenses, by whom paid. 5 1333. Probate, when conclusive. One year after removal of disabil- ity given to infants aird others. § 1327. The probate may be contested within one year. When a will has been admitted to probate, any person in- terested may, at any time within one year after such probate, contest the same or the vali-dity of the will. For §§ 1328, 1329 PROBATE OF WILLS. • MM that purpose he must file in the court in which the will ./as proved, a petition in writing, containing his allegations against the validity of the will or against the sufficiency of the proof, and praying that the probate may be revoked. En. March 11, 1872. Cal. Rep. Cit. 51, 569; 52, 95; 54, 557; 63, 6; 90, 623; 98, 204; 100, 250; 109, 28; 116, 446; 116, 450; 116, 643; 118, 6G1; 118, 662; 133, 136; 136, 594; 140, 437. Prob. Act, sec. 30. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 20, 272; 34, 504. Allegations against validity of will: Ante, sec. 1312. Probate, conclusive: Ante, sec. 1333. § 132S., Citation to be issu'ed to parties interested. Upon filing the petition, a citation must be issued to the executors of the will, or to the administrators with the will annexed, and to all the legatees and devisees men- tioned in th3 will, and heirs residing in the state, so far as known to the petitioner; or to their guardians, if any of them are minors; or to their personal representatives, if any of them are dead; requiring them to appear before the court on some day of a regular term, therein specified, to show cause why th« probate of the will should not be revoked. En. March 11, 1872. Am'd. 1873-4, 358. Cal. Rep. Cit 63, 8; 102, 94; 116, 451; 116, 452. Prob. Act, see. 31. En. April 22, 1850. Rep. 1851, 48U. En. 1851, 448. Cal. Rep. Cit. 37, 4J6. Citation: Post, sees. 1707-1711. Guardians: Post, sees. 1722, 1747 et seq. § 1329. The hearing had on proof of service. At the time appointed for showing cause, or at any time to which the hearing is postponed, personal service of the citations having been made upon any persons named therein, the court must proceed to try the issues of fact joined in the same manner as an original contest of a will. En. March 11. 1872. Cal. Rep. Cit. 116, 447; 138, 440. Prob. Act, sec. 32. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. £05 PROBATE OF WILLS. 5§ 1330-1332 Proof of notice: Ante, sec. 1306. Trial of the issues joined: Ante, sec. 1312. § 1330. Petitions to revoke probate of will tried by jury or court. Judgment, winat. In all cases of petitions to re- voke the probate of a will, wherein the original probate v/as granted without a contest, on written demand of either party, filed three days prior to the hearing, a trial by jury must be had as in cases of the contest of an original peti- tion to admit a will to probate. If, upon hearing the proofs of the parties, the jury shall find, or if no jury is had, the court shall decide, that the will is for any reason invalid, or that it is not sufficiently proved to be the last will of the testator, the probate must be annulled and re- voked. En. March 30, 1872. Cal. Rep. Cit. 73, 657; 106, 495; 147, 194. Prob. Act, sec. 33. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Jury, trial by: Ante, sees. 1313, 1314. § 1331. On revocation of probate, powers of executor, etc., cease, but not liable for acts in good faith. Upon the revocation being made, the powers of the executor or ad- ministrator with the will annexed must cease; but such executor or administrator shall not be liable for any act done in good faith previous to the revocation. En. March 11, 1872. Cal. Rep. Cit 65, 334; 73, 557. Prob. Act, sec. 34. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Acts before revocation, valid: Post, sec. 1428. § 1332. Costs and expenses, by whom paid. The fees and expenses must be paid by the party contesting the validity or probate of the will, if the will in probate is confirmed. If the probate is revoked, the costs must be paid by the party who resisted the revocation, or out of the property of the decedent, as the court directs. En. March 11, 1872. Cal. Rep. Cit 93, 572; 112, 452; 112, 454; 120, 452. Prob. Act, sec. 35. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 630. Costs, generally: Ante, sees. 1021 et seq. §§ 1333-1239 PROnATE OF WILLS. MJfi § 1333. Probate, when conclusive. One year after re- moval of disability given to infants and others. If no person, within one yoar after the probate of a will, contest the same or the validity thereof, the probate of the will is conclusive; saving to infants and persons of unsound mind a like period of one year after their respective disabilities lire removed. En. March 11, 1872. Am'd. 1873-4, 358. Cal. Rep. Clt. 51, 5G9; 52. 95; 63, 6; 74, 385; 77, 314: 100, 250; 101, 670; 136, 594. Prob. Act, sec. 36. En. April 22, 1850. Rep. ISfjl, 489. En. 1851, 448. Cal. Rep. Clt. id, 272. Conclusiveness cf probate: Post, sec. 1908, subd. 1; see, also, sec. 1327, aiite. AR'I'lCLE V. FROBATE OF LOST OR DESTROYED WILii. § 1S38. Proof of lost or destroyed will to be taken. 5 1339. Must have been In existence at time of death. S 1340. To be certlfled, recorded, and letters thereon granted. g 1J41. Court to restrain Injurious acts of executors or administrators during proceedings to prove lost will. § 1338. Proof of lost or destroyed will i^^ be taken. Whenever any will Is lost or destroyed, the superior court must take proof of the execution and validity thereof, and establish the same; notice to all persons interested be- ing first given, as prescribed in regard to proofs of wills in other cases. All the testimony given must be reduced to writing, and signed by the witnesses. En. March 11, 1872. Am'd. 1880, 78. CaL Rep. Cit 98, 97. Prob. Act, sec 37. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Notice to all persons Interested: Ante, sees. 1303, 1304; by citation: Post, sees. 1707-1711; service of papers: Ante, sees. 1010 et seq. § 1339. Must have been in existence at time of death. No will shall be proved as a lost or destroyed will, un- less the same is proved to have been in existence at the 607 PROBATE OF WILLS. SJ 1340, 1341 time of the death of the testator, or is shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. En. March 11, 1872. Cal. Rep. Cit. 57, 283; 66, 4S9; 66, 490; 66, 491; 98 93- 98, 94; 98, 102; 134, 235; 134, 663. Prob. Act, sec. 38. En. April 22, 1850. Rep. 1851 489. En. 1851, 448. § 1340. To be certified, recorded, and letters thereon granted. When a lost will is established, the provisions thereof must be distinctly stated and certified by the judge, under his hand and the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded, and letters testamentary or of adminis- tration, with the will annexed, must be issued thereon in the same manner as upon wills produced and duly proved. The testimony must be reduced to writing, signed, certified, and filed as in other cases, and shall have the same effect as evidence as provided in section one thousand three hundred and sixteen. En. March 11 1872 Am'd. 1873-4, 358; 1880, 78. Prob. Act, sec. 39. En. April 22, 1850. Rep. 1851. 489. En. 1851, 448. Certificate: Ante, sees. 1317, 1318. Letters testamentary, etc: Post, sees. 1349-1362. § 1341. Court to restrain injurious acts of executors or administrators during proceedings to prove lost will. If before, or during the pendency of an application to prove a lost or destroyed will, letters of administration are granted on the estate of the testator, or letters testa- mentary of any previous will of the testator are granted, the court may restrain the administrators or executors so appointed from any acts or proceedings which would be injurious to the legatees or devisees claiming under the lost or destroyed will. En. March 11, 1872. Prob. Act, sec. 40. En. April 22, 1850. Rep. 1851. 489. En. 1851, 448. {S 1344-1X46 PliOUATK Olf WIL,l-,3. ARTICLE VL PROBATE OF NUNCUPATIVE WTL.I>g. 5 1344. Nuncupative wills, when and how admitted to probate. § 1345. Ailditional requirenienta In probate of nuncupative wills. § 1346. Contests and appointments to conform to provisions as to other wills. § 1344. Nuncupative wills, when and how admitted to probate. Nuncupative wills may at any time, within six months after the testamentary words are spoken by the decedent, be admitted to probate, on petition and notice as provided in article one, chapter two, of this title. The petition, in addition to the jurisdictional facts, must al- lege that the testamentary words or the substance thereof were reduced to writing within thirty days after they were spoken, which writing must accompany the petition. En. March 11, 1872. Nuncupative wills: Civ. Code, sees. 1288-1291. Petition, notice and proof: Ante, sees. 1298-1309. § 1345. Additional requirements in probate or nuncupa- tive wills. The superior court must not receive or enter- tain a petition for the probate of a nuncupative will until the lapse of ten days from the death of the testator, nor must such petition at any time be acted on until the tes- tamentary words are, or their substance is, reduced to writing and file-d with the petition, nor until the surviving husband or wife (if any), and all other persons resident in the state or county interested in the estate, are noti- fied as hereinbefore provided. En. March 11, 1872. Am'd. 1880, 79. § 1346. Contests and appointments to conform to provi- sions as to other wills. Contests of the probate of nuncu- pative wills, and appointments of executors and adminis- trators of the estate devised thereby, must be had, con- ducted, and made as hereinbefore provided in cases of the probate of written wills. En. March 11, 1872. Probate contests: Ante, sees. 1312 et seq., 1327 et seq. Contesting appointment of executors, etc.: Post, sees. 1351, 1374. U)» EXECUTORS. ETC. S 1318 CHAPTER III. OP EXECUTOnS AND ADMINISTRATORS, THEIR LETTERS, BONDS, REMOVALS, AND SUSPENSIONS. Article I. Letters Testamentai-y an'd of Administration, With the Will Annexed, How and to Whom Issued, §§ 1348-1356. n. Form of Letters, §§ 1360-1362. III. Letters of Administration, to WJiom, and the Order In Which They are Granted, §§ 1365-1370. rv. Petition and Contest for Letters, and Action Thereon, §§ 1371-1379. v. Revocation of Letters and Proceedings Therefor, §§ 1383- 1386. VI. Oath;; and Bonds of Executors and Administrators, §5 13ii7- 1107. VTI. Special Administrators and Their Powers and Duties, §§ 1411-1417. VTII. Will.^ Fciiind After Letters of Administration Granted, §§ 1423-1429. IX. Disqualification of Judges and Ti'ansfers of Administrations, §§ 1430-14.33. X. Removals and Suspensions In Certain Cases, §§ 1436-1440. ARTICLE I. LETTERS TESTAMENTARY AND OF ADMINISTRATION, WITH THE WILL ANNEXED, HOW AND TO WHOM ISSUED. § 1348, Corporations as executors. § 1349. To whom letters on proved will to Issue. § 1350. Who are Incompetent as executors or admlnistratora. Letters with will annexed to issue, when. § 1351. Interested parties may file objections. § 1352. Married woman may be executrix. § 1353. Executor of an executor. § 1.354. Letters of administration where minor executor. § 1355. Acts of a portion of executors valid. § 1356. Authority of administrators with will annexed. Letters, how Issued. § 1348. Corporations as executors. Corporations, au- thorized by their articles of incorporation to act as execu- tor, administrator, guardian of estates, assignee, receiver, depository, or trustee, and having a paid-up capital of not les^i than two hundred and fifty thousand dollai's, or which one hundred thousand dollars shall have been actually paid in in cash, may be appointed to act in such capacity in like manner as individuals. In all cases in which It is required that an executor, administrator, guardian, assignee, receiver, depository, or trustee, shall §§ 1310, 1350 EXECUTORS, KTC. 810 qualify by taking and subscribing an oath, or In which an affidavit is required, It shall be a sufficient qualification by such corporation, If such oath shall be taken and sub- scribed, or such affidavit made, by the president or secre- tary or manager thereof; and such officer shall be liable for the failure of such corporation to perform any of the duties required by law to be performed by individuals act- ing In like capacity and subject to like penalties; and such corporation shall be liable for such failure to the full amount of Its capital stock and upon the bond required upon Its assuming the trusts provided for herein. En. Stats. 1887, 21. Act allowing corporation to act as executor: See Civ. Code, Appendix, title Corporations. § 1349. To whom letters on proved will to Issue. The' court admitting a will to probate, after the same is proved and allowed, must issue letters thereon to the persons named therein as executors who are competent to discharge the trust, who must appear and qualify, unless objection Is made as provided in section thirteen hundred and fifty- one. En. March 11, 1872. Cal. Rep. Clt. 88, 308; 120, 346. Prob. Act, sec. 41. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Clt. 22, 66. Letters testamentary, form of: Post, sec. 1360. Qualifications of executors: Post, sees. 1387-1407; powers before: Civ. Code, sec. 1373. § 1350. Who are Incompetent as executors or adminis- trators. Letters with will annexed to issue, when. No person is competent to serve as executor who, at the time the will Is admitted to probate, is: 1. Under the ag-e of majority. 2. Convicted of an infamous crime. 8. 'Adjudged by the court Incompetent to execute the duties of the trust by reason of drunkenness, Improvidence, or want of understanding or Integrity. If the sole executor or all the executors are Incompetent, or renounce, or fail to apply for letters, or to appear and qualify, letters of administration, with the will annexed, ,511 EXECUTORS, ETC. §§ 1351-135S must be )ssued as designated and provided for the grant of letters in cases of intestacy. En. March 11, 1872. Am'd. 1877-8, 111. Cal. Rep. Cit. 70, 344; 74, 340; 80, 383; 88, 307; 88, 808; 88, 312; 108, 488; 108, 489; 118, 279; 120, 343; 120, 346; 122, 381; 125, 307; 132, 403; 141, 541; 141, 542. Subd. 3—118, 278. Prob. Act, sec. 42. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 18G1, 631. Cal. Rep. Clt. 32, 441. Incompetent to serve as executors, minor: Post, sec. 1354. Some of executors unable to act: Post, sec. 1354. Marriage, as affecting competency: Post, sec. 1352. Letters of administration with will annexed: Post, sec. 1356. §•1351. Interested parties may file objections. Any per- son Interested in a will may file objections in writing, to granting lettters testamentary to the persons named as executors, or any of them; and the objections must be heard and determined by the court. A petition may, at the same time, be filed for letters of administration with the will annexed. En. March 11, 1872. Cal. Rep. Clt. 88, 308; 93, 620; 98, 554. Prob. Act, sec. 43. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861. 631. Letters of administration with will annexed: Post, sec. 1356. § 1352. Married woman may be executrix. A married woman may be appointed an executrix. The auchority of an executrix who was unmarried when appointed is not extinguished nor affected by her marriage. En. March 11, 1872. Am'd. 1891, 136. Cal. Rep. Clt. 70, 844; 78, 584. Prob. Act, sec. 44. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 631. Cal. Rep. Cit. 18, 20. Married woman, may be administratrix: Post, sec. 1870 § 1353. Executor of an executor. No executor of an ex- ecutor shall, as such, be authorized to administer on thft estate of the first testator, but on the deaili of the sole or SS 18S4, 1858 EXECUTORS, ETO, lU surviving executor of any last will, letters of administra- tion with the will annexed, of the estate of the first tes- tator, left unadmlnlstered, must be Issued. En. March 11, 1872. CaJ. Rep. Cit. 184, 486. Prob. Act, sec. 45. Bn. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Letters of administration with will annexed: Post, eeo. 1856. 8 1354. Letters of administration where minor executor. Where a person absent from the state, or a minor, is named executor — If there Is another executor who accepts the trust and qualifies — the latter may have letters testamen- tary and administer the estate until the return of the absentee or the majority of the minor, who may theji be admitted as Joint executor. If there Is no other executor, letters of administration with the will annexed must be granted; but the court may. In Its discretion, revoke them on the return of the absent executor, or the arrival of the minor at the age of majority. En. March 11, 1872. Cal. Rep. Clt 80, 884; 80, 885; 108, 488; 108, 489; 122, 882. Prob. Act, sea 46. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1355. Acts of a portion of executors valid. When all the executors named are not appointed by the court, those appointed have the same authority to perform all acts and discharge the trust, required by the will, as effectually for every purpose as if all were appointed and should act to- gether; where there are two executors or administrators, the act of one alone shall be effectual, if the other is absent from the state, or laboring under any legal disability from serving, or if he has given his coexecutor or coadministrator authority in writing, to act for both; and where there are more than two executors or administrators, the act of a majority is valid. En. March 11, 1872. Cal. Rep. Clt 54, 806. Prob. Act, sec. 47. En. April 22, 1850. Rep. 1851, 489. En. 1851. Am'd. 1861, 631. Remainder of executors acting, where some incapaci- tated, etc: Post, sec. 1425. ni3 EXECUTORS, ETC. 55 1356. 136.1 Joint authority: Ante, sec. 15. Authority of executors, before qualifying: Civ. Ck)de, sec. 1373; before letters reToked: Post, sec. 1428; powers, etc, generally: Post, sees. 1581 et seq.; foreign executor: Post, sec. 1913. Revocation of probate, effect of: Ante, sec. 1331. Removals and suspensions: Post, sees. 1438 et seq. § 1356. Authority of administrators v>/lth will annexed. Letters, how issued. Administrators with the v/ill annexed have the same authority over the estates wtuch executors named in the will would have, and their acts are as effec- tual for all purposes. Their letters must be signed by the clerk of the court, and bear the seal thereof. En. March 11, 1872. Prob. Act, sec. 48. En. April 22, 1850. Rep, 1851, 489. En. 1851, 448. Cal. Rep. Cit. 32, 441. Prob. Act, sec. 49. En. April 22, ]?,f>0. Rep. 1851, 489. En. 1851, 448. Executor of execntor: Ante, sec. 1353. AUTICLE II. FORM OF LETTERS. § 1360. Form of letters testamentary. § 1361. Form of letters of administration with the will annexed. § 1362. Form of letters of administration. § 1360. Form of letters testamentary. Letters testa- mentary must be substantially in the following form: State of California, county, or city and county of . The last v/ill of A. B., deceased, a copy of which is hereto annexed, having been proved and r'ecorded in the superior court of the county, or city and county, of , C. D., who is named therein as such, is hereby appointed executor. Witness, G. H., clerk of the superior court of the county, or city and county, of , with the seal of the court affixed, the day of , A. D. 18 — . (Seal.) By order of the court G. H., clerk. En. March 11, 1872. Am'd. 1880, 79. Prob. Act, sec. 50. En. April 22, 1850. Rep 1851, 489. En. 1851, 448. Seal, required: Ante, sec. 153, subd. 2; of courts, gener- ally: Ante, sees. 147-153. Code Civil Proc— 33. §§ 13«l. 1362 EXECUTORS, ETC. 5'4 § 1361. Form of letters of administration with the will annexed. Letters of administration, with the will annexed, must be substantially in the following form: State of Cali- fornia, county, [or city and county], of . The last will of A. B., deceased, a copy of which is hereto annexed, hav- ing been proved and recorded in the superior court of the county, or city an-d county, of , and there being no executor named in the will (or as the case may be), C. D. is hereby appointed administrator with the will annexed. Witness, G. H., clerk of the superior court of the county, or city and county of , with the seal of the court affixed, the day of , A. D. 18—, (Seal.) By order of the court G. H., clerk. En. March 11, 1872. Aan'd. 1880, 79. Prob. Act, sec. 5L En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1362. Form of letters of administration. Letters of ad,ministration must be signed by the clerk, under the seal of the court, and substantially in the following form: State of California, county, or city and county, of . C. D. is hereby appointed administrator of the estate of A. B., de- ceased. (Seal.) Witness, G. H., clerk of the superior court of the county, or city an-d county, of , with the seal thereof affixed, the day of , A. D. 18 — . By order of the court. G. H., clerk. En. March 11, 1872. Am'd. 1880, 79. Oal. Rep. Cit. 64, 10; 122, 41. Prob. Act, sec. 71. En. April 22. 1850. Rep. 1851, 489. En. 1851, 448. 515 EXECUTORS, EXa i 13'i5 ARTICLE III. LETTERS OF ADMINISTRATION, TO "WHOM AND THE ORDER IN WHICH THEY ARE GRANTED. 5 1365. Order of persona entitled to administer. Partner not to admin- ister. § 1366. Preference of persons equally entitled. § 1367. In discretion of court to appoint administrator, when. 5 1368. When minor or incompetent entitled, who appointed admin- istrator. § 1369. WTio are incompetent to act aa administrators. § 1370. Married woman may be administratrix. § 1365. Order of persons entitled to administer. Part- ner not to administer. Administration of the estate of a person dying Intestate must be granted to some one or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to administer only when they are entitled to succeed to his personal estate, or some por-' tion thereof; and they are, re.specti7ely, entitled thereto in the following order: 1. The surviving husband or wife, or some competent per- son whom he or she may request to have appointed. 2. The children. 3. The father or mother. 4. The brothers. 5. The sisters. 6. The grandchildren. 7. The next of kin entitled to share In the distribution of the estate. 8. The public administrator. 9. The creditors. 10. Any person legally competent. If the decedent was a member of a partnership at the time of Ills decease, the surviving partner must in no case be appointed administrator of his estate. En. March 11, 1872. Am'd. 1875-6, 102; 1877-8, 111. Cal. Rep. Cit. 46, 574; 52, 539; 54. 216; 54, 217; 56, 420; 57, 82; 64, 227; 65, 209; 72, 165; 72 166; 74, 340; 74, 341; 76, 297; 88, 620; 93, 612; 97, 340; 97, 341; 97, 342; 97, 428; 97, 429; 100, 80; 103, 588; 106, 455; 108, 488; 110, 410; 114, 465; 118,278; 118,279; 127,661; 127, 662; 135, 8; 136, 111; 136, 113; 141, 542; 143, 442; 143, 445; 143, 446; 143, 608; 146, 593. Subd. 1—78, 585; 120, 346; 120, 349; 122, 163; 122, 164; 122, 165; 132, 309. Subd. 2—132, 402; 132, 403. Subd. 4—143, SS 13C6-13G8 EXECUTORS, ETC. 61B 440. Subtl. 7— 13C, 112. Subd. 8—120, 343; 122, 1C3. Subd. 10—53, 245. Prob. Act, sec. 52. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1855, 133; 1861, 631; 1864, 522. Cal. Rep. Cit. 7, 232; 7, 230; 16, 165; 16, 367; 16, 164; 17, 536; 25, 515; 34, 468. Public administrators, generally: Post, sees. 1726 et seq. Incompetent persons: Post, sees. 1369, 1370. Recommendation by one entitled to administer: Post, sec. 1379. § 1366. Preference of persons equally entitled. Of sev- eral persons claiming and equally entitled to administer, males must be preferred to females, and relatives of the whole to those of the half blood. En. March 11, 1872. Cal. Rep. Cit. 132, 402; 141, 542. Prob. Act, sec. 53. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1367. In discretion of court to appoint administrator, when. When there arc several persons equally entitled to the administration, the court may grant letiers to one or more of them; and when a creditor is claiming letters, the court may, in its discretion, at the request of another cred- itor, grant letters to any other person legally competent. En. March 11, 1872. Cal. Rep, Cit 46, 574; 132, 402; 143, 440; 143, 443; 143, 445; 143, 446. Prob. Act, sec. 54. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1864, 368. § 1368. When minor or incompetent entitled, who ap- pointed administrator. If any person entitled to adminis- tration is a minor or an incompetent person, letters must be granted to his or her guardian, or any other person entitled to letters of administration, in the discretion of the court. En. March 11, 1872. Am'd. 1893, 52. Cal. Rep. Cit. 80, 384; 97, 429; 103, 430; 143, 439; 143, 440; 143, 441; 143, 443; 143, 444; 143, 445; 143, 446. Prob. Act, sec. 57. En. April 22, 1850. Rep. 1851, 48'J. En. 1851, 448. Am'd. 1870, 637. Guardian of minor: Ante, sees. 372, 373, post, sees, 1747. 1759. BIT EXECUTORS, ICTC. §§ 1363-1371 § 1369. Who are incompetent to act as administrators. No person is competent or entitled to serve, as adminls- txator or administratrix who is: 1. Under the age of majority. 2. Not a bona Sde resident of the state. 3. Convicted of an infamous crime. 4. Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity. En. March 11, 1872. Am'd. 1877-8, 112. Cal. Rep. Cit. 54, 216; 54, 217; 63, 459; 63, 460; 64, 228; 72, 165; 80, 383; 88, 620; 93, 612; 97, 429; 103, 587; 104, 624; 110, 410; 142, 130; 142, 131; 142, 132; 142, 133; 143, 440; 143, 441; 143, 445. Subd. 2—120, 638; 122, 381. Prob. Act, sec. 55. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 632. Revoking letters: See sec. 1383, post. § 1370. Married woman may be administratrix. A mar- ried woman may be appointed administratrix. When an unmarried woman appointed administratrix marries, her authority is not thereby extinguished. En. March 11, 1872. Am'd. 1891, 11. Cal. Rep. Cit. 132, 310; 132, 311. Prob. Act, sec. 56. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1866, 765; 1870, 636; 1872, 94. Married woman as executrix: Ante, sec 1352. ARTICLE IV. PETITION AND CONTEST FOR LETTERS, AND ACTION THERE- ON. § 1.771. AppUcations, how made. § 1H72. V.'hen granted. § 1373. Clerk of court must set day for bearing. Notice of appUcation. I 1374. Contesting application. § 1375. Hearing of application. § 1376. Evidence of notice. § 1377. Grant to any applicant, § 1378. Wliat proofs must be made before granting letters of adminis- tration. S 1379. Letters may be granted to others than those entitled. § 1371. Applications, how made. Petitions for lotters of administration must be in writing, signed by the appli- 85 1372-1374 EXECUTORS, ETC. 518 cant or his counsel, and filed with the clerk of the court, stating the facts essential to give the court jurisdiction of the case, and when known to the applicant, he must state the names, ages, and residence of the heirs of the decedent, and the value and character of the propertj'. If the juris- dictional facts existed, but are not fully set forth in the petition, and are afterward proved in the course of ad- ministration, the decree or order of administration and subsequent proceedings are not void on account of such want of jurisdictional averments. En. March 11, 1872. Cal. Rep. Cit. 71, 522; 76, 297; 100, 80. Prob. Act, sec. 58. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 632. Orders and decrees need not recite the facts: Post, sec. 1704. § 1372. When granted. Letters of administration may be granted by the court at any time appointed for the hearing of the application, or at any time to which the hearing is continued or postponed. En. March 11, 1872. Am'd. 1880, 79. Prob. Act, sec. 59. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1373. Clerk of court must set day for hearing. Notice of application. "^Tien a petition praying for letters of ad- ministration is filed, the clerk of the court must set the petition for hearing by the court, and give notice thereof by causing notices to be posted in at least three public places in the county, one of which must be at the place where the court is held, containing the name of the deced- ent, the name of the applicant, and the time at which the application will be heard". Such notice must be given at least ten days before the hearing. En. March 11, 1872. Am'd. 1880, 80; 1891, 427. Cal. Rep. Cit. 84, 109; 105, 182; 142, 552. Prob. Act, sec. 60. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Posting notices: Compare, ante, sec. 1303. § 1374. Contesting application. Any person interested may contest the petition, by filing written opposition there- 519 EXECUTORS, ETC. 5§ 1375-13T7 to, on the ground of the incompetency of the applicant, or may assert his own fights to the administration, and pray that letters be issued to himself. In the latter case the contestant must file a petition, and give the notice required for an original petition, and the court must hear the two petitions together. En. March 11, 1872. Cal. Rep. Cit. 98, 554; 100, 80; 122, 163; 142, 133; 142, 552. Prob. Act, sec. 6L En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 632. Cal. Rep, Cit. 28, 186. Incompetency of the applicant: Ante, sec. 1369. Persons entitled to administer: Ante, sec. 1365. § 1375. Hearing of application. On the hearing, it be- ing first proved that notice has been given as herein re- quired, the court must hear the allegations and proofs of the parties, and order the issuing of letters of administra- , tion to the party best entitled thereto. En. March 11, 1872. Cal. Rep. Cit. 100, 80. Prob. Act, sec. 62. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 34, 468. Proof of notice: Compare, ante, sec. 1306. Conclusive evidence: Post, sec. 1376. § 1376. Evidence of notice. An entry in the minutes of the court, that the required proof was made and notice given, shall be conclusive evidence of the fact of such notice. En. March 11, 1872. Prob. Act, sec. 63. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 7, 234; 7, 238. § 1377. Grant to any applicant. Letters of administra- tion must be granted to any applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear and claim the issuing of letters to themselves. En. March 11, 1872. Cal. Rep. Cit. 56, 410; 120, 348. Prob. Act, sec. 64. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit 7, 23L 5§ 1378, 1379 EXECUTORS, ETC. 620 Other persons having better rights — May procure revoca- tion: Post, sees. 1283-1386. § 1378. What proofs must be made before granting let- ters of administration. Before letters of administration are granted on the estate of any person who is represented to have died intestate, the fact of his dying intestate must be proved by the testimony of the applicant or others; and the court may also examine any other person concerning the time, place, and manner of his death, the place of his residence at the time, the value and character of his prop- erty, and whether or not the decedent left any will, and may compel any person to attend as a witness for that purpose. En. March 11, 1872. Prob. Act, sec. 65. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 632. Witness — Compelling attendance of: Post, sees. 1985 et seq. § 1379. Letters may be granted to others than those entitled. Administration may be granted to one or more competent persons, although not otherwise entitled to the same, at the written request of the person entitled, filed in the court. When the person entitled is a nonresident of the state, affidavits, taken ex parte before any officer authorized by the laws of this state to take acknowledg- ments and administer oaths out of this state, may be received as prima facie evidence of the identity of the party, if free from suspicion, and the fact is established to the satisfaction of the court En. March 11, 1872. Am'd. 1877-8, 112; 1880, 113. Cal. Rep. Cit. 53, 245; 54, 217; 56, 420; 57, 82; 63, 459; 63, 460; 64, 228; 72, 166; 93, 613; 97, 340; 97, 341; 97, 342; 97, 343; 97, 429; 104, 624; 120, 346; 122, 164; 122, 165; 135, 8; 141, 541; 143, 445. Prob. Act, sec. 66. En. April 22, IS.'^O. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 632. Cal. Rep. Cit. 16, 164; 16, 165; 28, 186. Proof of identity.— Affidavits: Post, sees. 2009-2015; depo- sitions out of the state: Post, sees. 2024-2028; prima facie evidence: Post, sec. 1833. 521 EXECUTORS, ETC. SS 1383-1385 ARTICLE V. REVOCATION OF LETTERS AND PRQCEEDINGS THEREFOR. § 1.1S3. Revocation of letters of administration. § loS4. WTien petition filed, citation to issue. § 1385. Hearing of petition for revocation. § 13S6. Prior rights of relatives entitles them to revoke prior letters. § 1383. Revocation of letters of administration. When letters of administration have been granted to any other person than the snrvivin'g husband or wife, child, father, mother, brother, or sister of the intestate, any one of them who is competent, or any competent person at the written request of any one of them, may obtain the revocation of the letters, and be entitled to the administration, by pre- senting to the court a petition praying the revocation, and that letters of administration may be issued to him. En. March 11, 1872. Am'd. 1880, 80. Cal. Rep. Cit 56, 327; 72, 166; 84, 110; 88, 481; 97, 342; 98, 535; 99, 375; 108, 487: 108, 488; 108, 489; 120, 349; 122, 164; 142, 130; 147, 345. Prob. Act, sec. 67. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1870, 400. Cal. Rep. Cit 16, 165. Persons Incompetent: Ante, sees. 1369, 1370. Revocation: See sees. 1386, 1436-1440, post. § 1384. When petition filed, citation to Issue. When such petition is filed, the clerk must, in ad-ditlon to the no- tice provided in section thirteen hundred and seventy-three, issue a citation to the administrator to appear and answer the same at the time appointed for the hexing. En. Mar ch 11, 1872. Am'd. 1873-4, 359. Cal. Rep. Cit 56, 327; 72, 24; 120, S49; 120, 384. Prob. Act, sec 68. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 633. Citation — Generally: Post, sees. 1707-1711. § 1385. Hearing of petition for revocation. At the time appointed, the citation having been duly served and re- turned, the court must proceed to hear the allegations and proofs of the parties; and if the right of the applicant is established, and he is competent, letters of administration §§ 1386, 13S7 EXECUTORS, ETC. 622 must be granted to him, and the letters of the former ad- ministrator revoked. En. March 11, 1872. Cal. Rep. Cit. 56, 327; 120, 349; 142, 130. Prob. Act, sec. 69. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1386. Prior rights of relatives entitles them to revoke prior letters. The surviving husband or wife, when letters of administration have been granted to a child, father, brother, or sister of the intestate; or any of such relatives, when letters have been granted to any otiier of them, may assert his prior right, and obtain letters of administration, anti have the letters before granted revoked in the manner prescribed in the three preceding sctions. En. March 11, 1872. Cal. Rep. Cit. 56, 327; 120, 349; 132, 310. Prob. Act, sec. 70. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1870, 400. ARTICLE VI. OATHS AND BONDS OF EXECUTORS AND ADMINISTRATORS. S 1387. Administrator or executor to take oath. Letters and bond to be recorded. fl 1388. Bon-d of administrators, form and requirements of. § 13S9. Additional bonds, when required. § 1390. Conditions of bonds. § 1391. Separate bonds, where more than one administrator. § 1392. Several recoveries may be had on same bond. § 1393. Bonds, and JustiOcation of sureties on. Must be approved. § 1394. Citation and requirements of judge on deficient bond. Additional security. 5 13^ Rlgrht ceases, when sufficient security not given. § 1396. When bond may be dispensed with. § 1397. Petition showing failing sureties and asking for further bonds. § 1398. Citation to executor, etc., to show cause against such appli- cation. § 1309. Further security may be ordered. § 1*00. Neglecting to obey order. § 1401. Suspending powers of executor, etc. § 1402. Further security ordered without application of party la inter- est. § 1403. Release of sureties. I 1404. New sureties. I 14C5. Neglect to give new sureties forfeits letters, § 1406. Application to be determined any time. S 1407. Liability on bond. § 1387. Administrator or executor to take oath. Let- ters and bond to be recorded. Before letters testamentary 628 EXECUTORS, ETC. § ^^^^ or of administration are issued to tlie executor or adminis- trator, lie must talce and subscribe an oath before some of- ficer authorized to administer oaths, that he will perform, according to law, the duties of executor or administrator, which oath must be attached to the letters. All letters testamentary and of administration issued to, and all bonds executed by, executors or administrators, with the affidavits and certificates thereon, must be forthwith recorded by the clerk of the court having Jurisdiction of the estates, In books to be kept by him in his office for that purpose. En. March 11, 1872. Cal. Rep. Cit. 96, 593. Prob. Act, sec. 72. En. April 22, 1850. Rep. 1851, 489 En. 1851, 448. Am'd. 1861. 663; 1863, 23. Cal. Rep. CIt. 84, 468; 34, 469. § 1388. Bond of administrators, form and requirements of. Every person to whom letters testamentary or of ad- ministration are directed to issue must, before receiving them, execute a bond to the state of California, with two or more sufllcient sureties, to be approved by the superior court, or a jud'ge thereof. In form, the bond must be joint and several, and the penalty must not be less than twice the value of the personal property, and twice the probable value of the annual rents, profits, and issues of real prop- erty belonging to the estate, which values must be ascer- tained by the superior court, or a Jud'ge thereof, by exam- ining on oath the party applying, and any other persons. En. March 11, 1872. Am'd. 1880, 80. Cal. Rep. Cit. 101, 128; 112, 267; 127, 661; 127, 662. Prob. Act, sec. 78. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1864. 368. Sureties: Post, sees. 1393, 1394, 1397-1400, 1403, 1404, 1407. Approved by Judge, at chambers: Ante, sec. 166. Bond — condition of: Post, sec. 1390; separate, when: Post, sec. 1391; recovery on: Post, sees. 1392, 1407; not required, when: Post, sec. 1396; further security: Post, sees. 1889, 1394-1402; stands as undertaking on appeal: Sec. 965. Bond, reduction of, on deposit of personal securities with certain corporations: See act of April 6, 1891,, Stats. 1891, p. 490, sec. 4. 8§ 1389-1392 EXECUTORS, ETC. 824 § 1389. Additional bonds, wlien required. The superior court, or a judge thereof, must require an additional bond whenever the sale of any real estate belonging to an estate Is ordered; but no such additional bond must be required when it satisfactorily appears to the court that the penalty of the bond given before receiving letters, or of any bond given in place thereof, is equal to twice the value of the personal property remaining in or that will come into the possession of the executor or administrator, including the annual rents, profits, and issues of real estate, and twice the probable amount to be realized on the sale of the real estate ordered to be sold. En. March 11, 1872. Am'd. 1880, 80. Cal. Rep. Clt 50, 809; 123, 438. Additional bond may be required of public administrator: Post, sec 1727. § 1390. Conditions of bonds. The bond must be condi- tioned that the executor or administrator shall faithfully execute the duties ot the trust according to law. En. March 11, 1872. Duties of the trustee: Post, sees. 1581 et seq. § 1391. Separate bonds, where more than one adminis- trator. Wlien two or more persons are appointed execu- tors or administrators, the superior court, or a judge there- of, must require and take a separate bond from each of them. En. March 11, 1872. Aon'd. 1880, 80. Cal. Rep. Git. 74, 213. Prob. Act, sec. 74. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1392. Several recoveries may be had on same bond. The bond shall not be void upon the first recovery, but may be sued and recovered upon from time to time, by any person aggrieved, in his own name, until the whole penalty is exhausted. En. March 11, 1872. Prob. Act, sec. 75. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. In his own name, party beneficially Interested: Ante, neo. 867. Kind of money, payable under bond: Post, sec. 1407. 626 EXECUTORS, ETC. §§ 1393, 1394 8 1393. Bends, and justification of sureties on. Must be approved. In all cases where bonds or undertakings are required to be given, under this title, the sureties must justify thereon in the same manner and in like amounts as required by section ten hundred and fifty-seven of this code, and the certificate thereof must be attached to and filed and recorded with the bond or undertaking. All such bonds and undertakings must be approved by a Judge of the superior court before being filed or recorded. En. March 11, 1872. Am'd. 1880, 81. Prob. Act, sec. 76. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1855, 299; 1861, 633; 1862, 424; 1864, 868. Approved by judge, at chambers: Ante, sec. 166. Examination of sureties, when qualifications questioned: Post, sec. 1394. § 1394. Citation and requirements of judge on deficient bond. Additional security. Before the judge approves any bond required under this title, and after its approval, he may, of his own motion, or upon the motion of any per- son Interested In the estate, supported by affidavit that the sureties, or some one or more of them, are not worth as much as they have justified to, order a citation to issue requiring such sureties to appear before him at a designated time and place, to be examined touching their property and Its value; and the judge must, at the same time, cause a notice to be Issued to the executor or administrator requiring his appearance on the return of the citation; and on Its return he may examine the sureties and such witnesses as may be pro-duced, touching the property of the Bureties and its value; and If, upon such examination, he Is satisfied that the bond Is insufficient, he must require sufficient additional security. En. March 11, 1S72. Am'd. 1873-4, 859; 1880, 81. Cal. Rep. Cit. 72, 24; 111, 156. Citations: Post, sees. 1707, 1711. Additional security, effect of failure to give, in time: Post, sec 1395. SS 1305-1^98 E-fECUTORS. ETC. 826 § 1395. Right ceases, when sufficient security not given. If sufficient security is not given within the tim'^ fixed by the judge 's order, the right of such executor or ad- ministrator to the administration shall ,ioasc>, and the per- son next entitled to the administration on the estate, who will execute a sufficient bond, must be appointed to the ad- ministration. En. March 11, 1872. Cal. Rep. Cit. Ill, 157; 111, 158. § 1396. When bond may be dispensed with. When it is expressly provided in the will that no bond shall be re- quired of the executor, letters testamentary may issue, and sales of real estate be made and confirmed without any bond, unless, the court, for good cause, require one to be executed; but the executor may at any time afterward, (if it appear from any cause necessary or proper), be re- quired to file a bond, as in other cases. En. March 11, 1872. Am'd. 1873-4, 360. Cal. Rep. Cit. 53, 20. Prob. Act, sec. 77. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1S64, 369. § 1397. Petition showing failing sureties and asking for further bonds. Any person interested in an estate may, by verified petition, represent to the superior co-urt, or a judge thereof, that the sureties of the executor or administrator thereof have become, or are becoming, in- solvent, or that they have removed, or are about to re- move, from the state, or that from any other ca'use the bond is insufficient, and ask that further security be re- quired. En. March 11, 1872. Am'd. 1880, 81. Cal. Rep. Cit. 64, 39; 146, 171. Prob. Act, sec. 78. En. April 22, 1850. Rep, 1851, 489. En. 1851, 448. Cal. Rep. Cit. 68, 86. Ask further security, court may: Post, sec. 1402. § 1398. Citation to executor, etc., to show cause against such application. If the court, or a judge thereof, is satis- 527 - EXECUTORS, ETC. . 5J 1-S-HOl fled that the matter requires investigation, a citaition must be issued to the executor or administrator, requiring him to appear, at a time ajid place to be therein specified, to show cause why he should not give further security. The citation must be served personally on the execaitor or administrator, at least five days before the return day. If he has absconded, or cannot be found, it may be served by leaving a copy of it at his place of residence, or by such publication as the court or a ju-dge thereof may order. En. March 11, 1872. Am'd. 1880, 81. Cal. Rep. Cit. 72, 24; 116, 451. Prob. Act, sec. 79. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 68, 86. § 1399. Further security may be ordered. On the re- turn of tie citation, or at such other time as the judge may appoint, he m-ust proceed to hear the proofs and allegations of the parties. If it satisfactorily appears that the security is from any cause insufficient, he may make an order re- quiring the executor or administrator to give further se- curity, or to file a new bond in the usual form, within a reasonable time, not less than five days. En. March 11, 1872. Prob. Act, sec. 80. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit 68, 86. § 1400. Neglecting to obey order. If the executor or administrator neglects to comply with the order within the time prescribed, the judge must, by order, revoke his letters, and his authority must thereupon cease. En. March 11, 1872. Prob. Act, sec. 81. En. April 22, 1850. Rep, 1851, 489. En. 1851, 448. Cal. Rep. Cit. G8, 86. § 1401. Suspending powers of executor, etc. When a petition is presented praying that an executor or admin- istrator be required to give further security, or to give bond, where by the terms of the will no bond was originally re- a 1402-1404 EXECUTORS, ETC. 628 quired, and it is alleged on oath that the executor or ad- ministrator is wasting the property of the estate, the judge may, by order, suspend his powers until the matter caai be heard and determined. En. March 11, 1872. Cal. Rep. Cit. 53, 20. Prob. Act, sec. 82. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1402. Further security ordered without application of party in interest. When it comes to his knowledge that the bond of any executor or atlrainistrator is from any cause insufficient, the judge, v/ithout any application, must cause him to be cited to appear and show cause why he shouM not give further security, and must procead thereon as upon the application of any person interested. En. March 11, 1872. Am'd. 1880, 81. Cal. Rep. Cit. 64, 39; 116, 451; 127, C62; 14G, 171. Prob. Act, sec. 83. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1403. Release of sureties. When a surety of any executor or administrator desire-s to be released from responsibility on account of future acts, he may make application to the superior court, or a judge thereof, for relief. The court or judge must cause a citation to the executor or administrator to be issued, and served per- sonally, requiring him to appear at a time and place to be therein specified, and to give other security. If he has absconded, left, or removed from the state, or if he cannot be found, after due diligence and Inquiry, service may be made as provided in section one thousand three hundred and ninety-eight. En. March 11, 1872. Am'd. 1880, 82. Cal. Rep. Cit. 64, 40; 72, 24; 107, 213; 116, 451; 146, 170. Prob. Act, sec. 84. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 633. § 1404. New sureties. If new sureties be given to the satisfaction of the judge, he may thereupon make an order that the sureties who applied for relief shall not be liable on their bond for any subsequent act, default, or misconduct of the executor or administrator. En. March 11, 1872. Cal. Rep. Cit 65, 594; 67, 383; 107, 213. 629 EXECUTORS, ETC. §§ 1105-1411 Prob. Act, sec. S5. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1405. Neglect to give nevj sureties forfeits letters. If the executor or administrator neglects or refuses to give new sureties, to the satisfaction of the jud'ge, on the return of the citation, or within such reasonable time as the judge shall allow, unless the surety making the appli- cation shall consent to a longer extension of time, the court or judge must, by order, revoke his letters. En. March 11, 1872. Prob. Act, sec. 86. En. April 22, 1850, Rep, 1851, 489. En. 1851, 448. Am'd. 1801, 634, § 1406. Application to be determined any time. The applications authorized by the nine preceding sections of this chapter may be heard and determined at any time. All orders made therein must be entered upon the minutes of the court En. March 11, 1872. Am'd. 1880, 82. Prob. Act, sec, 87. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1407. Liability on bond. The liability of principal and sureties upon the bond of any executor, administrator, or guardian, is in all casies to pay in the kind of money or currency in v.-hich the principal Is legally liable. En. Stats. 1873-4, 361. Cal. Rep. Cit 76, 299. ARTICLE VII. SPECIAt, ADMINISTRATORS AND THEIR POWERS AND DUTIES 5 1411. Special administl-ator, when appointed. § lfl2. Sppcial letters may Issue at any time. § 1413. Preference given to persons entitled to letters. § 1414. Special administrator to give bond and take oath. § 1415. Duties of special administrator. § 1416. When letters testamentarj' or of administration are gri'anted, special administrator's powers cease. § 1417. Special administrator to render account. § 1411. Special administrator, when appointed. When there is delay in granting letters testamentary or of ad- ministration from any cause, or when such letters are Code CivU Proc.— 34. 5§ 1412, 1413 EXECUTORS, ETC. S90 granted Irregnlarly, or no sufficient bond is filed as re- quired, or when no application is made for such letters, or when an executor or administrator dies, or is suspended, or removed, the superior court, or a judge thereof, must ap- point a special administrator to collect and take charge of the estate of the decedent in whatever county or coun- ties the same may be found, and to exercise such other powers as may be necessary for the preservation of the es- tate; or he may direct the public administrator of his county to take charge of the estate. En. March 11, 1872. Am'd. 1880, 82. Cal. Rep. Cit 70, 344; 8G, 73; 94, 568; 98, 66; 106, 432; 111, 158; 142, 118; 142, 433. Prob. Act, sec 88. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1855, 133. Cal. Rep. Cit 7, 231; 22, 67. Prdb. Act, sec. 95. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit 20, 311. Prob. Act, sec. 282. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 652. § 1412. Special letters may issue at any time. The ap- pointment may be made at any time, and without notice, and must be made by entry upon the minutes of the court specifying the powers to be exercised by the administrator. Upon such order being entered, and after the person ap- pointed has given bond, the clerk must issue letters of administration to such person in conformity with the order. En. March 11, 1872. Am'd. 1880, 82. Cal. Rep. Cit 78, 301. Prob. Act, sec 89. En, April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit 22, 67. Oath and bond: Post, sec. 1414. § 1413. Preference given to persons entitled to letters. In making the appointment of a special administrator, the court or jndge must give preference to the person en- titled to letters testamentary or of administration, but no appeal mnst be allowed from the appointment En. March 11, 1872. Am'd 1880, 82. CaL Rep. Cit 73, 203; 142, 433. r.21 EXECUTORS, ETC. §§ 1414-1416 iTcb. Act, sec 90. En. April 22, 1850. Rep. 1851. 489. Eu. 1851, 448. Cal. Rep. Cit. 97, 570. Persons entitled to letters: Ante, sees. 1365 et seq. § 1414. Special administrator to give bond and take oath. Before any letters issue to any special adminis- trator, he must give bond In such sum as the court or judge may direct, with sureties to the satisfaction of the court or judge, comiitioned for the faithful performance of his duties; and he must take the usual oath, and have the same indorsed on his letters. En. March 11, 1872. Am'd. 1880, 82. Prob. Act, sec, 91. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Oath and bond of administrator, etc: Ante, sees. 1387- 1407. § 1415. Duties of special administrator. The special administrator must collect and preserve for the executor or administrator, all the goods, chattels, debts, and effects of the decedent, all incomes, rents, issues, and profits claims, and demands of the estate; must take the charge and management of, enter upon and preserve from damage, waste, and injury, the real estate, and for any such and all necessary purposes may commence and maintain or defend suits and other legal proceedings as an admin- istrator; he may sell such perishable property as the court may order to be sold, and exercise such other powers as are conferred upon him by his appointment, but in no case is he liable to an action by any creditor on a claim against the decedent. En, March 11, 1872. Am'd, 1880, 83. Cal. Rep. Cit. 50, 302; 69, 240; 106, 431; 106, 432; 106, 433. Prob. Act, sec 92. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 634. CaL Rep, Cit. 7, 232. § 1416. When letters testamentary or of administration are granted, special administrator's powers cease. When letters testamentary or of administration on the estate of the decedent have been granted, the powers of the special administrator cease, and he must forthwith deliver §§ 1417. 142S EXECUTORS, ETC. B33 to the executor or administrator all the property and ef- fects of the decedent in his hands; and the executor or administrator may pros€>cute to final judgment any suit commenced by tlie special administrator. En. March 11, 1872. Cal. Rep. Cit. 142, 433. Prob. Act, sec. 93. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1417. Special administrator to render account. The special administrator must render an account, on oath, of his proceedings in a like manner as other adjninistrators are required to do. En. March 11, 1872. Cal. Rep. Cit. 69, 241. Prob. Act, sec. 94. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Account of administrator, etc.: Post, sees. 1622 et seq. ARTICLE VIII. WILLS FOUND AFTER LETTERS OF ADMINISTRATION GRANTED, AND MISCELLANEOUS PROVISIONS. 5 1423. On proof of will, after grant of letters of administration, let- ters revoked. § 1434. Power of executor In such a case. § U2i. Remaining administrator or executor to continue when his col- leagues are disqualified. § 1426. Who to act when all acting are Incompetent. § 1427. Executor or administrator may resign, when. Court to appoint successor. Liability of outgoer. § 1428. All acts of executor, etc., valid until his power la revoked. § 1429. Transcript of court minutes to be evidence. § 1423. On proof of will, after grant of letters of admin, istration, letters revoked. If, after granting letters of ad- ministration on the ground of intestacy, a will of the de- cedent is duly proved and allowed by the court, the letters of administration must be revoked, and the power of the administrator ceases, and he must render an account of his administration within such time as the court shall direct En. March 11, 1872. Prob. Act, sec. 98. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Account of administration: Sees. 1G22 et seq. 633 ESECUTORS, ETC. §§ 1424-142« § 1424. Power of executor in such a case. In such case, the executor or the administrator with the will annexed is entitled to demand, sue for, recover and collect all the rights, goods, chattels, debts and effects, of the decedent remaining unadministered, and may prosecute to final judgment any suit commenced by the administrator before the revocation of his letters of administration. En. March 11, 1872. Prob. Act, sec. 99. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1425. Remainmg adminrstrat'^r oi- executor ^o con- tinue when his colleagues are disqualifieo". In case ary one of several executors or administrators to whom letters are granted, dies, becomes lunatic, is convicted of an in- famous crime, or otherwise becomes incapable of executing the trust; or in case the letters testamentary or of admin- istration are revoked or annulled, with respect to any one executor or administrator, the remaining executor or ad- ministrator must proceed to complete the execution of the ■will or administration. En. March 11, 1872. Cal. Rep. Cit. 68. 283; 99, 218; 108, 488. Prob. Act, sec. 96. En. April 22, 1850. Rep. 1851, 489. En. 1851. 448. Cal. Rep. Cit 20, 311. § 1426. Who to act when aFI acting are Incompetent. If all such executors or administrators die or become in- capable, or the power and authority of all of them Is re- voked, the court must issue letters of administration, with the will annexed or otherwise, to the widow or next of kin, or others, in the saane order and manner as is directed in relation to original letters of administration. The admin- istrators so appointed must give bond in the like penalty, with like sureties and conditions, as hereinbefore re- quired of administrators, and shall have the like power and authority. En. March 11, 1872. Am'd. 1880, 83. Cal. Rep. Cit. 68, 283; 99, 218; 108, 488; 112, 16. Prob. Act, sec. 97. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. OaL Rep. Cit. 32, 441. J§ 1427- 142J EXECUTORS. ETC. 834 Letters c/i. administration — Order and manner of grant- ing: Ante, sees. 1365 et seq.; with will annexed: Ante, sec. 1356. Oath and bond: Ante, sees. 1387-1407. Power and authority: Post, sees. 1581 et seq. § 1427. Executes* cr administrator may res!gr., when. Court to appoint successsof. Liabiiity of outgoi^h. Any executor or administrator may, at any time, by writing, filed in the superior court, resign his appointment, having first settled his accounts an-d 'delivered up all the est&te to the person whom the court shall appoint to receive tiie same. If, however, by reason of ary delays in such set- tlement and delivery up of the estate, or for any other cause, and circumstances of the estate or the rights of those Interested therein require it, the court may at any time before settlement of accounts and delivering up of the es- tate is completed, revoke the letters of such executor or administrator, and appoint in his stead an administra- tor, either special or general, in the same manner as Is directed In relation to original letters of administration. The liability of the outgoiu'g executor or administrator, or of the sureties on his bond, shall not be in any manner discharged, released, or affected by such appointment or resignation. En. Maich 11, 1872. Am'd. 1880, 83. Cal. Rep. Cit. 70, 342; 78, 584; 80, 16; 127, 452. Prob. Act sec. 100. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1858, 105. § 1428. All acts of executor, etc., valid until his power is revoked. All acts of an executor or administrator as such, before the revcK?ation of his letters testamentary or of administration, are as valid to all intents and purposes as if such executor or administrator had continued lawfully to execute the duties of his trust En. March 11, 1872. Prob. Act, sec. 101. En. April 22, 1850. Rep. 1851, 489. En. 1851. 448. Cal. Rep. Cit. 20, 311. § 1429. Transcript of court minutes to be eviderrce. A transcript from the minutes of the court, showing the appointment of any person as executor or administrator, SJ5 EXECUTORS, ETC. iS 1430, 1431 together with the certificate of the clerk under his hs-cd and the seal of his court, that such person has given bonJ and been qualified, and that letters testamentary or of ad- ministi-ation have besn issued to him and have not been revoked shall have the same effect in evidence as the let- ters themselves. En. March 11, 1872. Pfolo. Act, sec. 102. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Letteis and bonds recordetl: Ante, sec. 1387. ARTICLE IX. DISQUALIFICATION OF JUDGES AND TRANSFERS OF ADMIN- ISTRATIONS. S 1430. When Judge not to act. § 1131. Transfer of probate matters to adjoining county. § 1432. Transfer not to change right to administer. Re- transfer, how made. § 1433. When proceedings to be returned to original court. § 1430. When judge not to act. No will shall be ad- mitted to probate, or letters testamentary or of administra- tion granted before any judge who is interested as next of kin to the decedent, or as a legatee or devisee under the will, or when he is named as executor or trustee in the will, or is a witness thereto, or is in any other manner interested or disqualified from acting. En. March 11, 1872. Am'd. 1880, 83. Prob. Act, sec. 103. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1864, 369. § 1431. Transfer of probate matters to adjoining county. When a petition is filed in the superior court, praying for admission to probate of a will, or for granting letters testamentary or of administration, or when proceedings are pending in the superior court for the settlement of an estate, and there is no judge of said court qualified to act, an order must be made transferring the proceedings to the superior court of an adjoining county, and the clerk of the court ordering the transfer must transmit to the clerk of the court to which the proceedings are ordered to be §5 1482. 1433 EXECUTOnS, T.TCl. tM transferred a certlflsd copy of th'i ryrder and all papers on file In his office In tho proceed'r.'^ia; and thereafter the court to which the procoe:lir>g Is transferred shall exercise the same authority and Jurisdiction over the ^stato, and all matters relating to the administration thereof, as if It had ori'ginal Jurisdiction of the estate; provided, there shall not be any necessity for trao^fenlng such proceedings, or any of them, when a Judge of some other county qualified to act attends at the rpxiJ3'3t of the Judge of the county where such procec;dlrigs are pending, to hold court, to conduct and to try such proceedings; an-d such Judge, when so callQd upon *.o preside, shall exercise Jurisdiction over any proceeding in the estate as Is exercised in other cases under like circumstar.ces En. March 11, 1872. Am'-d. 1880, 84; 1391, 433. Prob. Act, sec. 104. En. April 22, 1S50. Rep. 1851, 489. En. 1851, 448. Am'd. 1864, 869; 1866, 828. § 1432, Transfer r,ot to change right to administer, n'itransfer, how made. The transfer of a proceeding from one court to another as provided for In the preceding section, shall not affect the right of any person to letters testamentary or of administration on the estate transferred, but the same persons are entitled to letters testamentary -or of administration on the estate, In the order hereinafter provided. If, before the administration Is closed of any estate so transferred as herein provided, another person Is elected or appointed, and qualified as Judge of the court wherein siich proceeding was originally commenced, who Is not disqualified to act in the settlement of the estate, and the causes for which the proceeding was transferred no longer exist, any person interested in the estate may have the proceeding returned to the court from which it was originally transferred, by filing a petition setting forth these fa«ts, and moving the court therefor. En. March 11, 1872. Am'd. 1880, 84. § 1433. When proceedings to be returned to original court. On hearing the motion, If the facts required by the preceding section to be set otit in the petition are satia- factorily shown, and it further appears to the court that the convenience of parties interested would be promoted by Buch change, the Judge must make an order transferring the proceeding back to the court where it was originally 687 ■ EXECUTORS, ETC. 8 ■l*3« conimenced ; aud the clerk of the court orderins the transfer must trauBmit to the clerk of the court in which the proceeding was originally connmenced, a certified copy of the order, and all the original papers on file in his office in the nroceeding; and the court where the proceeding v/as originally commenced shall thereafter have jurisdic- tion and power to make all necessary orders and decrees to close up the administration of the estate. En. March 11, 1872. Am'd. 1880, 84. ARTICLE X. REMOVALS AND SUSPENSIONS IN CERTAIN CASES. 8 1436. Suspension of powers of executor. 9 1437. Executor to have notice of his suspension, and to be cited to appear. 6 1438. Any party Interested may appear on hearing. I 1439. Notice to absconding executors and administrators. § 1#10. May compel attendance. § 1435. Suspension of powers of executor. Whenever a judge of a superior court has reason to believe, from his own knowledge, or froon credible information, that any executor or administrator has wasted, embezzled, or mis- managed, or is about to waste or embezzle the property of the estate committed to his charge, or has committed or Is about to commit a fraud upon the estate, or Is incom- petent to act, or has permanently removed from the state, or has wrongfully neglected the estate, or has long neglected to perform any act as such executor or admin- istrator, he must, by an order entered upon the minutes of the court, suspend the powers of such executor or ad- ministrator, until the matter is Investigated. En. March 11, 1872. Am'd. 1880, 84. Cal. Rep. CIt. 61, 154; 70, 844; 83, 586; 99, 221; 122, 381; 122, 382; 122, 383; 125, 305; 125, 308; 135, 195; 137, 475. Prob. Act, sec. 281. En. April 22, 1850. Rep. 1851, 489. En. 1851. 448. Am'd. 1861, 65L Cal. Rep. Cit. 6, 669. Misconduct of executor — As to inventory: Post, seca IS 1437-1439 EXECUTORS, ETC. 6S8 1450, 1451; as to exhibit and account: Post, sees. 1C2C, 1627, 1G30. Suspension of executor, etc. — Done at chambers: Ante, sec. 166. Removal of executor: Ante, sees. 13S3 et seq. § 1437. Executor to have notice of his suspension, and to be cited to appear. -When such suspension is made, notice thereof must be given to the executor or administra- tor, and he must be cited to appear and show cause why his letters should not be revoked. If he fall to appear in obedience to the citation, or if appearing, the court is sat- isfied that there exists cause for his removal, his letters must be revoked, and letters of administration granted anew, as the case may require. En. March 11, 1872. Gal. Rep. CIt. 70, 344; 122, 382; 125, 305; 125, 308. Prob. Act, sec. 283. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Clt. 6, 669. § 1438. Any party interested may appear on hearing. At the hearing, any person interested in the estate may appear and file his allegations in writing, showing that the executor or administrator should be removed; to which the executor or administrator may demur or answer, as hereinbefore provided. The Issues raised must be heard and determined by the court. En. March 11, 1872. Cal. Rep. Clt. 70, 344; 122, 381; 125, 305. Prob. Act, sec. 284. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1439. Notice to absconding executors and adminis- trators. If the executor or administrator has absconded or conceals himself, or has removed or absented himself from the state, notice may be given him of the pendency of the proceedings by publication, in such manner as the court may direct, and the court may proceed upon such notice as if the citation had besa personally served. En. March 11, 1872. Cal. Rep. Clt. 70, 844; 122, 881. Prob. Act, sec. 285. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 652. Compare: Post, sec. 1680. £39 EFFECTS OF DECEDENTS. §§ 1440- 1}« ' § 1440. May compel attendance. In the proceedings authorized by the preceding sections of this article, for the removal of an executor or administrator, the court may- compel his attendance by attachment, and may compel him to answer questions, on oath, touching his administration, and, upon his refusal so to do, may commit him until he obey, or may revoke his letters, or both. En. March 11, 1872. Cal. Rep. Cit 61, 154; 83, 586; 122. 381. Prob. Act. sec. 286. En. April 22, 1850. Rep. 1851, 489. En. 18-51, 448. Am'd. 18G1, C52. Compelling obedience: Compare post, sees. 1627, 1628; as to contempt: Ante, sees. 1209, 1219. CHAPTER TV. OF THE imrETNTORT AND COIJ>BCTIOn OF THB EFFECTS OF DECEDENTS. Article I. Inventory. Appraisement, and Possession of Estate, §5 1443- 1453. II. EUnbezzlement and Bnrreira«r of Property of Estate. {5 14S8-146L ARTICLE L INVENTORY, APPRAISBMENT, AND POSSESSION OF ESTATE. § 1443. Inventory to be returned. Including the homestead. I 1444. Appraisement and pay of appraisers. § 1445. Oath of appraisers and Inventory, how ma<3e. § 1146. Inventory to account for moneys. If aU money, no appraise- ment necessary. § 1447. Effect of naming a debtor executor. I 1448. Discharge or bequest of debt against executor. § 1449. To make oath to inventory. § 1450. Letters may be revoked for neglect of administrator. I 1451. Inventory of after-discovered property. § 1«2. Administrator and executor to possess real and personal estate. § 1453. Executor or administrator to deUver real estate to heirs or vJevisees. § 1443. Inventory to be returned, including the home- stead. Every executor or administrator must make and return to the court, within three months after his appoint- ment, a true Inventory and appraisement of all the estate of the decedent, including the homestead, if any, which §§ IIU, 1445 EFFECTS OF DECEDENTS. MO has come to hLs possession or knowledge. En. March 11, 1872. Am'd. 1880, 85. Cal. Rep. Cit. 86, 310; 100, 1G8; 111, 434; 111, 458; 112, 395; 119, 477. Proh. Act, sec. 105. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 43, 549. § 1444. Appraisement and pay of appraisers. To make the appraisement, the court or a judge thereof must ap- point three disinterested persons (any two of whom may act), who are entitled to receive a reasonable compensation for their services, not to exceed five dollars per day, to be allowed by the court or judge. The appraisers must, with the inventorj-, file a verified account of their services and disbursements. If any part of the estate is in any other county than that in which letters issued, appraisers thereof may be appointed, either by the court or judge having jurisdiction of the estate or by the court or judge of such other county, on request of the court or judge having jurisdiction. No clerk or deputy, nor any person related by consanguinity or affinity to or connected by marriage or In business with the judge of the court, shall be ap- pointed or shall be competent to act as appraiser In any estate, or matter or proceeding pending before such judge or in said court. En. March 11, 1872. Am'd. 1880, 85; 1893, 185. Cal. Rep. Cit. 119, 477. Prob. Act, sec. 106. En. April 22, 1850. Rep. 1851, 489. En. 1851. 448. Am'd. 1861, 634. Appraisers — Duty as to homestead: Post, sees. 1476, 1486; appointed at chambers: Ante, sec. 166. Appraiser accepting fee not allowed, a misdemeanor: See Pen. Code, sec. 653%. § 1445. Oath of appraisers and inventory, how made. Before proceeding to the execution of their duty, the ap- praisers, before any officer authorized to administer oaths, m-ust take and subscribe an oath, to be attached to the inventorj', that they will truly, honestly, and impartially appraise the property exhibited to them, according to the best of their knowledge and ability. They must thwi pro- ceed to estimate and appraise the property; each article must be set down separately, with the valoe thereof In 641 EFFECTS OF DECBHSENTS. 5§ 1446-144S dollars and cents, in figures, opposite to the articles, re- spectively; the inventory must contain all tbe estate of the decedent, real and personal, a state::. snt of all debts, partnerships, and other interests, bonds, mortgages, notes, and other securities for the payment of money belonging to the decedent, specifying the name of the debtor in each security, the date, the suth originally payable, the indorse- ments thereon, (if any) with their dates, and the sum which, in the judgment of the appraiser, may be collected on each debt, interest, or security; the inventory must show, so far as the same can be ascertained by the executor or the administrator, what portion of the property is com- munity property, and what portion Is the separate prop- erty of the decedent. En. March 11, 1872. Cal. Rep. Cit. 58, 576; 68, 396; 119. 477. Pmb. Act, sec 107. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 634. § 1446. Inventory to account for moneys. If all money, no appraisement necessary. The inventory must also con- tain an account of all moneys belonging to the decedent which have come to the hands of the executor or adminis- trator, and if none, the fact must be so stated in the inven- tory. If the whole estate consists of money, there need not be an appraisement, but an inventory m'ust be made and returned as in other cases. En. March 11, 1872. Cal. Rep. Cit. 119, 477. Prob. Act, sec. 108. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'-d. 1866, 765. § 1447. Effect of naming a debtor executor. The nam- ing of a person as executor does not thereby discharge him from any just claim which the testator has against him but the claim must be included in the inventory, and the executor is liable for the same, as for so much money in his hands, when the debt or demand becomes due. En. March 11, 1872. Cal. Rep. Cit. 105, 445; 105, 446; 125, 246; 125, 248; 1S3, 615; 145, 236. Prob. Act, sec. 109. EiL April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1448. Discharge or bequest of debt against executor. The discharge or bequest in a will, of any debt or demand §§ 1449-1451 EFFECTS OF DECEDENTS. Ma of the testator against the executor named, or any other person, is not valid against the creditors of the decedent, but is a specific bequest of the debt or demand. It must be included in the inventory, and If necessary, applied in the payment of debts. If not necessary for that purpose. It must be paid in the same manner and proportion as other specific legacies. En. March 11, 1872, Cal. Rep. Cit. 52, 577. Prob. Act, sec. UO. En. April 22, 1850. Rep. 1851, 489. En. 1851. 448. 5 1449. To make oath to Inventory. The inventory m«st be signed by the appraisers, and the executor or ad- ministrator must take and subscribe an oath before an of- ficer authorized to administer oaths, that the Inventory contains a true statement of all the estate of the decedent which has come to his knowledge and possession, and par- ticularly of all moneys belonging to the decedent, and of all just claims of the decedent against the affiant. The oath must be indorsed upon or annexed to the inventory. En. March 11. 1873. Cal. Rep. Cit. 100, 167; 100, 168; 100, 109; 100, 598; 100, 600; 100, 601; 100, 602; 105, 446. Prob. Act, sec. lU. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 635. § 1450. Letters may be revoked fop i>eg?ect of adminis- trator. If an executor or administrator neglects or refuses to return the inventory within the time prescribed, or with- in such further time, not exceeding two months, which the court or judge shall for reasonable cause allow, the court may, upon notice, revoke the letters testamentary or of administration, and the executor or administrator Is liable on his bond for any injury to the estate, or any person interested therein, arising from such failura En. March 11, 1872. Cal. Rep. Cit 61, 154; 106, 155; 111, 434. Prob. Act, sec. 112. EJn. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 635. § 1461. Inventory of after-discovered property. When- ever property not mentioned in an inventory that is made 643 EFFECTS OF DECEDENTS. ! 1452 and filed, comes to the possession or knowledge of an exec- utor or administrator, he must cause the sajne to be ap- praised in the manner prescribed in this article, and an in- •ventorj"- thereof to be returned within two months after the discovery; and the making of such inventory may be en- forced, after notice, by attachment or removal from office. En. March 11, 1872. Cal. Rep. Cit 58, 516; 61, 154. Prob. Act, sec 113. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Enforced by attachment, etc: C!ompare, ante, sec. 1440. § 1452- Administrator and execirtop to possess real and personal estate- The execntor or administrator is entitled to the possession of all the real and personal estate of the decedent, and to receive the rents and forfeits [profits] of the real estate until the estate is settled, or until delivered over by order of the court to the heirs or devisees; and must keep in good tenantable repair all houses, buildings, and fixtures thereon which are under his control. The heirs or devisees may themselves, or jointly with the exeoa- tor or administrator, maintain an action for the poss&sslon of the real estate, or for the purpose of quieting title to the same, against anyone except the executor or adminis- trator; but this section shall not be so construed as requiring them so to do. En. March 11, 1872. Am'd. 1S80, 85, Cal. Rep. Cit 52, 350; 54, 122; 57, 388; 57, 459; 61, 600; 67, 329; 69, 158; 80, 260; 81, 130; 83, 293; 85, 167; 91, 662; 98, 103; 98, 266; 100, 168; 105, 183; 107, 594; 110, 501; 110, 575; 112, 399; 126, 484; 131,671; 134,83; 136, 34; 136, 635; 137, 174; 137, 255; 143, 272; 147, 558. Prob. Act, sec. 114. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 20, 627; 26, 123; 29, 373; 29, 514; SI, 604; SI, 616; 31, 618; 42, 463; 57, 387. Anthority oi executors: Ante, sec 1S55. Possession of estate: Post, sec. 1581; when that of heirs, etc.: Post, sec. 1581; as to partnership property: Post, sec. 1585. Until delivered to heirs: Post, sec. 1453. Aetion by executor, etc: Post, sees. 1458, 1581, 15S2 el seq. {} 1453-1459 EFFECTS OF DECEDENTS. 544 § 1453. Executor or administrator to deliver real estate to heir or devisees. Unless it satisfactorily appear to the court that the rents, issues, and profits of the real estate for a longer period are necessary to be received by the executor or administrator, wherewith to pay the debts of the decedent, or that it will probably be necessary to sell the real estate for the payment of such debts, the court, at the end of the time limited for the presentation of claims against the estate, must direct the executor or adminis- trator to deliYer possession of all the real estate to the heirs at law or devisees. En. March 11, 1872. Am'd. 1880, 85. Cal. Rep. Clt 67, 459; 85, 167; 107, 694; 136, 419. ARTICLE IL EMBEZZLEMENT AND SITRRENDEB OF PROPERTY OF THE ES- TATE}. § 1458. Embezzling estate before grrant of letters testamentary. { 1459. Citation to persons suspected to have embeizled estate, etc { 1460. Refusal to obey citation, penalty for, and for embezzlement. May be compelled to disclose by Imprisonment. Liable for double damages. S 14«1. Persons intrtisted with estate of decedent may be dted to account. § 1458. Embezzling estate before grant of letters testa- mentary. If any person, before the granting of letters testamentary or of administration, embezzles or alienates any of the money's, goods, chattels, or effects of a decedent, he is chargeable therewith and liable to an action by the executor or administrator of the estate, for double the value of the property so embezzled or alienated, to be recovered for the benefit of the estate. En. March 11, 1872, Cal. Rep. Cit 58, 415; 61, 154; 105, 606; 105, 608. Prob. Act, sec. 116. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 29, 510; 29, 511; 29, 513; 30, 113; 105, 607; 105, 608. Action by executors, etc. — Generally: Sec. 1452, ante; Bjcs. 1460, 1581 et seq., post. § 1459. Citation to persons suspected to have embezzled estate, etc If any executor, administrator, or other person 5-45 EFFECTS OF DECEDENTS. § 1460 interested in the estate of a decedent, complains to the superior court, or a judge thereof, on oath, that any person is suspected to have concealed, embezzled, smuggled, con- veyed away, or disposed of any moneys, goods, or chattels of the decedent, or has in his possession or knowledge any deeds, conveyances, bonds, contracts, or other writings, which contain evidences of or tend to disclose the right, title, interest, or claim of the decedent to any real or personal estate, or any claim or demand, or any lost will, the said court or judge may cite such person to appear before such court, and may examine him on oath upon the matter of such complaint. If such person is not in the county where the decedent dies, or where letters have been granted, he may be cited and examined either before the superior court of the county where he is found, or before the superior court of the county where the decedent dies, or where letters have been granted. But if, in the latter case, he appears and is found innocent his necessary ex- penses must be allowed him out of the estate. En. March 11, 1872. Am'd. 1880, 8G. Cal. Rep. Cit. 61, 154; 71, 2G9; 71, 271; 71, 272; 72, 24; 94, 349; 100, 364; 105, 604; 105, 608; 105, 613; 105, 614; 105, 618; 116, 451. Prob. Act, sec. 117. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 105, 607. § 1460. Refusal to obey citation, penalty for, and for embezzlement. May be compelled to disclose by imprison- ment. Liable for double damages. If the person so cited refuses to appear and submit to an examination, or to answer such interrogatories as may be put to him, touching the matters of the ccxmplaint, the court may, hy warrant for that purpose, commit him to the county jail, there to remain in close custody until he submits to the order of the court, or is discharged according to law. If, upon such examination, it appears that he has concealed, embezzled, smuggled, conveyed away, or disposed of any moneys, goods or chattels of the decedent, or that he has in his possession or knowledge any deeds, conveyances, bonds, contracts, or other writings containing evidences of or tending to disclose the right, title, interest, or claim of the decedent to any real or personal estate, claim, or Code Civil Proc— 36. 5 1461 EPTECTS OF DECEDENTS. 646 demand, or any lost will of the decedent, the court may make an order requiring such person to disclose his Itnowl- edge thereof to the executor or administrator, and may oonunit him to the county jail, there to remain until the order is complied witn, or he is discharged according to law; and all such interrogatories and answers must be in writing, signed by the party e-aavned, and filed in the court. The order for such di-sciosure made upon such examination shall be prima facie evidence of the right of the executor or admini-^rtrator to such property in any ac- tion brought for the recovery thereof; and any judgment recovered therein must be for double the value of the prop- erty as assessed by the court or jury, or for return of the property and dajnages in addition thereto, equal to the value of such property. In addition to the examination of the partv, witnesses may be produced and examined on either side. En. March 11, 1872. Am'd. 1873-4, 360; 1880. 86. Cal. Rep. Cit. 71, 271; 71, 272; 94, 349; 98, G43; 105, 604; 105, G05; 105, 608; 105, 613; 105, 614; 105, 618. Prob. Act, sec. 118. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1860, 357; 1861, 635. Cal. Rep. Cit. 105, 607. Contempt: Sees. 1209, 1219. § 1461. Persons intrusted with estate of decedent may be cited to account. The superior court, or a judge thereof, upon the campl9.int, on oath, of any executor or administrator, may cite any person who has been intrusted with any part of the estate of the decedent, to appear before such court, and require him to render a full account, on oath, of any moneys, goods, chattels, bonds, accounts, or other property or papers belonging to the estate, which have come to his possession in trust for the executor or administrator, and of his proceedings thereon; and if the person so cited refuses to appear and render such account, the court may proceed against him as provided in the pre- ceding section. En. March 11, 1872. Am'd. 1880, 87. Cal. Rep. Cit 58, 415; 61, 154; 71, 269; 71, 271; 71, 272; 100, 364; 105, 606; 105, 608; 116, 451. Prob. Act, sec. 119. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 33. 520; 47. 170; 57. 388; 105. 607. PROVISION FOR FAMILY. 5§ 1464, 1405 CHAPTER V. OF THE PROVISION FOR THE SUPPORT OF THE FAMILY, AND OF THE HOMESTEAD. Article I. Of the Provision for the Support of the Family, 5§ 14C1- 1470. U. Of the Homestead, §5 1474-1486. ARTICLE I. OP THE PROVISION FOR THE SUPPORT OF THE FAMILY. § 1464. Widow and minor children may remain in decedent's house, etc. § 14C5. All property exempt from execuUoa to be set apart for use of family. § 1466. May maie extra allowance. § 1467. Payment of allowance. § 1468. Property set apart, how apportioned between widow and chil- dren. § 1469. Administration when estate does not exceed U,500.00. § 1470. When all property other than homestead to go to children. § 1464. Widow and minor children may remain in dece- dent's inouse, etc. When a person dies, leaving a widow or minor children, the widow or children, until letters are granted and the inventory is returned, are entitled to remain in possession of the homestead, of all the wearing apparel of the family, and of all the household furniture of the decedent, and are also entitled to a reasonable pro- vision for their support, to be allowed by the superior court, or a judge thereof. En. March 11, 1872. Am'd. 1880, 87. Cal. Rep. Cit. 83, 325; 100, 170; 100, 598; 106, 430; 106 432- 117, 512; 119, 137; 131, 4; 140, 152. Prob. Act, sec. 120. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 29, 513. § 1465. Ail property exempt from execution to be set apart for use of family. Upon the return of the inventory, or at any subsequent time during the administration, the court may, on its own motion, or on petition therefor, set apart for the use of the survivin-g husband or wife, or, in case of his or her death, to the minor chiMren of the decedent, all the property exempt from execution, including § 1466 PROVISION FOR FAMILY. MIt the homestead selected, designated, and recorded; provided such homestead was selected from the common property, or from the separate property, of the persons selecting or joining in the selection of the sajne. If none has been selected, designated, and recorded, or in case the homestead was selected by the survivor out of the separate property of the decedent, the decodent not having joined therein, the court must select, designate, and set apart, and cause to be recorded, a homestead for the use of the surviving husband or wife and the minor children; or if there be no surviving husband or wife, then for the use of the minor children, in the manner provided in article two of this chapter, out of the common property, or if there be no common property, then out of the real estate belonging to the decedent. En. March 11, 1872. Am'd. 1880, 87. Cal. Rep. Cit. 47, 80; 50, 541; 50, 545; 50, 546; 53, 719 54, 227; 63, 37; 65, 86; 65, 87; 69, 245; 69, 460 72, 594; 72, 597; 73, 587; 73. 591; 74, 616; 75, 381 76, 229; 77. 644; 78, 476; 78, 484; 80, 72; 80, 210 81, 244; 81, 580; 81, 581; 81, 583; 82, 9; 85, 75 86, 153; 86, 154; 93, 619; 94, 337; 94, 339; 94, 340 96, 438; 98, 4S0; 99, 450; 100, 324; 100, 325; 100, 597 100, 604; 104. 100; 106, 430; 108, 467; 108, G55; 109,526 114, 84; 117, 354; 117, 512; 120, 427; 121, 354; 121. 653 121, 654; 122, 330; 122, 437; 122, 438; 122, 440; 128, 401 128, 383; 128, 387; 128, 673; 131, 4; 134, 96; 139, 72 139, 150; 140, 152; 144, 147; 145, 45; 145, 238; 145, 402 145, 778; 145, 781. Prob. Act, sec. 121. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 636; 1866, 851; 1868, 172; 1870, 400. Cal. Rep. Cit. 29, 103; 85, 312; 35, 313; 35, 814; 35, 315; 35, 324; 37, 181; 43, 642; 45, 698. Appeal from order setting apart homsetead or refusing so to do: Ante, sec. 963. § 1466. May make extra allowance. If the amount set apart be insufficient for the support of the widow and chil- dren, or either, the court or a judge thereof must make such reasonable allowance out of the estate as shall be necessary for the maintenance of the family, according to their circumstances, during the progress of the settlement of the estate, whiich, in case of an insolvent estate, must not be longer than one year after granting letters testa- mentary or of administration. En. March 11, 1872. Am'd. 1880, 87. M PROVISION FOR FAMIt^Y. §§ 1467, 146S Cal. Rep. Clt. 57, 459; 60, G50; 67, 350; 73, 5S3; 73, 587 73, 589; 77, 644; 93, 619; 96, 438; 100, 170; 100, 325 100, 602; 100, 603; 100, 605; 106, 430; 106, 432; 108, 467 114, 79; 117, 512; 122, 438; 122, 440; 128. 383; 131, 4 131, 292; 145, 560. Prob. Act, sec. 122. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 636. Cal. Rep. Clt. 73, 588. § 1467. Payment of allowance. Any allowance made by the court or judge. In accordance with the provisions of this article, must be paid In preference to all other charges, except funeral charges and expenses of administration; and any such allowance, whenever made, may, in the dis- cretion of the court or Judge, take effect from the •death of the decedent. En. March 11, 1872. Cal. Rep. Cit. 52, 577; 57, 459; 73, 583. Prob. Act, sec. 123. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 636; 1864, 370. Cal. Rep. Cit. 29, 372. § 1468. Property set apart, how apportioned between widow and children. When property Is set apart to the use of the family, in accordance with the provisions of this chapter, If the decedent left a widow or surviving husband, and no minor child, such property Is the property of the widow or survivln'g husband. If the decedent left also a minor child or children, the one-half of such property shall belong to the widow or surviving husband, and the remain- der to the child, or In equal shares to the children, if there he more than one. If there be no widow or surviving hus- band, the whole belongs to the minor child or children. If the property set apart be a homestead, selected from the separate property of the deceased, the court can only bet Ir. apart for a limited period, to be designated in the order, and the title vests in the heirs of the deceased, subject to such order. En. March 11, 1872. Am'd. 1873-4, 361; 1880, 87; 1881, 8. Cal. Rep. Clt. 50, 542; 65, 87; 78, 593; 73, 594; 74, 617; 80, 73; 81, 580; 82, 10; 86, 153; 86, 154; 93, 293; 93, 294; 94, 337; 94. 338; 94, 339; 94, 340; 96, 438; 100, 170; 104, 100; 108, 653; 114, 87; 120, 427; 120, 428; 121, 268; 121, 655; 128, 673; 139, 72; 189, 150; 189, 151; 141. 648; 144, 146; 144, 654; 145, 240. Prob. Act, sec. 125. En. April 22, 1850. Rep. 1851, 489, En. 1851, 448. J§ 116'>, U70 PROVISION FOR FAMILY. 660 Cal. Rop. Clt. 29, 104; 29. 372; 35, 32r;; 35, 324; 43. C42; 43, C43. Where widow has a maintenance: Post. sec. 1470. 6 1469. Administration when estate does not exceed $1,500.00. If, upon the return of the Inventory of the estate of a deceased person, It shall appear therefrom that the value of the whole estate does not exceed the sum of fifteen hundred dollars, and If there be a widow or minor children of the deceased, the court, or a judge thereof, shall, by order, require all persons Interested to appear on a day fixed, to show cause why the whole of said estate should not be assigned for the use and support of the family of the deceased. Notice thereof shall be given and proceed- ings had In the same manner as provided In sections one thousand six humlred and thirty-three, one thousand six hundred and thirty-five, and one thousand six hundred and thirty-eight of this code. If, upon the hearing, the court finds that the value of the estate does not exceed the sum of fifteen hundred dollars. It shall, by decree for that pur- pose, assign to the widow of the deceased. If there be a widow. If no widow, then to the minor children of the de- ceased, If there be minor children, the whole of the estate, Efubject to whatever mortgages, liens, or encumbrances there may be upon said estate at the time of the death of the deceased, after the payment of the expenses of the last illness of the deceased, f^ineral charges, and expenses of administration, and the title thereof shall rest absolutely In such widow or minor children, subject to whatever mort- gages, liens, or encumbrances there may be upon said estate at the time of the death of the deceased, and there must be no further proceedings In the administration, unless further estate be discovered. En. March 11. 1872. Am'd. 1875-6. 102; 1880, 88: 1897, 7. Cal. Rep. Clt. 57, 459; 63, 404; 64, 251; 100. 170; 116, 580; 116, 581; lis, 72; 123, 467; 126, 577; 126, 578; 127. 334: 127, 429; 133, 528; 139, 71; 139, 72; 143, 523. Prob. Act, sec. 126. En. April 22, 1850. Rep. 1851, 489. En. 1851. 448. Am'd. 1861, 636. Cal. Rep. Cit 29, 372. Act authorizing next of kin of decedent to collect deposit in bank of less than five hundred dollars: See post, Ap- pendix, title Estates of Deceased Persons. § 1470. When all property other than homestead to go to children. If the widow has a maintenance derived from B51 PROVISION FOR FAMILY. { 1474 her own property equal to the portion set apart to her by the preceding sections of this article, the whole property so set apart, other than the homestead, must go to the minor children. En. March 11, 1872. Am'd. 1880, 88. Prob. Act. sec. 127. En. April 22, 1850. Rep. 1851, 48». En. 1851, 448. ARTICLE II. OF THE! HOMESTEAD. 5 1474. Rights of survivor to hompstead. § 1475. Selected and recorded homestead set off to person entitled. Subsisting liens to be paid by solvent estate. § 1476. Appraisers to carve out of the original, excoedlng five thou- sand dollars In value, a homestead, and report the same. § 1477. Beport of the appraisers. Majority and minority, whloh may be confirmed. § 1478. Day to be set for confirming or rejecting the report of the ap- praisers. Appeal. g 1479. If report rejected, other appraisers appointed. If again re- jected, partition suit to be brought. (Repealed.) g 14S0. Instead of dividing the homestead, who may take a deed there- of at appraised value. (Repealed.) g 1481. If no homestead Is selected and recorded prior to death of de- cedent, one may be petitioned for. (Repealed.) g 14S2. Court to direct partition suit in the dlstriot court, when. Pro- ceedings thereon. (Repealed.) g 1483. If property is common or separate, court to cause appraisement and admea.iurement to be made. (Repealed.) g 1484. New appraisement, when ordered. Instead of deeding property at appraised value, public sale to b« orfierevS when. (Re- pealed.) g 1485. Costs, to whom chargeable. Persons succeeding to rights or homestead owners have all their powers and rights. g 1486. Certified copies of certain orders to be recorded. § 1474. Rights of survivor to homestead. If the home- stead selected by the husband and wife, or either of them, during their coverture, and recorded while both were living, was selected froon the community property, or from the separate property of the person selecting or Joining in the selection of the same. It vests, on the death of the husband or wife, absolutely in the sun'ivor. If the homestead was selected from the separate property of either the husband or the wife, without his or her consent. It vests, on the death of the person from whose property It was selected, in his or her heirs, subject to the povver of the superior court to assign it for a limited period to the family of the §§ 1175. 1176 PROVISION lAJR FAMILY. tU decedent. In either case It is not subject to the payment of any debt or liability contracted by or existing against the husband and wife, or either of them, previous to or at the lime of the death of such husband or wife, except as provided in the Civil Code. En. March 11, 1872. Am'd. 1873-4, 3C2; 1S80, 88. Cal. Rep. Cit. 50, 543; 52, 297; 52, 298; 76, 641; 79, 11 80, 209; 81, 243; 81. 580; 82. 10; 83. 442; 85, 621 8G. 153; 92, 371; 92, 372; 94. 339; 95, 403; 95, 406 95. 407; 102, 341; 108, 054; 113, 31; 117, 409; 118, 300 119, CCC; 121, 653; 121, C54; 132, 611; 132, G13; 139, 72 139, 151; 142, 474; 144, 619; 144, 653; 144, 655; 146, 107; 146, 431. Homestead — Generally, and setting ajpart: Ante, sec. 1465. § 1475. Selected and recorded homestead set off to per- 6on entitled. Subsisting liens to be paid by solvent estate. If the homestead selected and recorded prior to the death of the decedent be returned in the inventory appraised at not exceeding five thousand dollars in value, or was pre- viously appraisod as provitlod in the Civil Code, and sucb appraised value did not exceed that eum, the superior court must, by order, set it off to the persons in whom title is vested by the preceding section. If there be sub- sisting liens or encumbrances on the homestead, the claims secured thereby must be presented and allowed as other claims against the estate. If the funds of the estate be adequate to pay all claims against the estate, the claims BO secured must be pai-d out of such funds. If the funds of the estate be not suflicient for that purpose, the claims 60 secured shall be paid proportionately with other claims allowed, and the liens or encumbrances on the homestead shall only be enforced against the homestead for any defiiciency remaining after such payment. En. March 11, 1872. Ajn'd. 1873-4, 3C2; ISSO, 88. Cal. Rep. Cit. 54, 228; 62, 26; 64, 78; 65, 87; 72, 547 79, 10; 79, 11; 80, 209; 81, 580; 83, 442; 83, 443 83, 444; 86, 122; 86, 350; 99, 507; 99, 508; 106, 204 109, 67; 109, 68; 109, 69; 109, 428; 109, 429; 112, 266 121, 653; 127. 277; 132, 428; 136, 527; 142, 476; 144, 664; 146, 107. § 1476. Appraisers to carve out of t!ie original, exceed- ing five thousand dollars in value, a homestead, and report the same. If the homestead, as selected and recorded, be 55J PROVISION FOR FAMILY. J§ 1477, 1478 returned in the inventory appraised at more than five thousand dollars, the appraisers must, before they make their return, ascertain an-d appraise the value of the homestead at the time the same was selected, and if such value exceeded five thousand dollars, or if the homestead was appraised as provided in the Civil CcKle, and such appraised value exceeded that sum, the appraisers must determine whether the premises can be -divided without material injury, and if they find that they can be thus divided, they must admeasure and set apart to the parties entitled thereto, such portion of the premises, including the dwellin^^-hcruse, as will amount in value to the sum of five thousand dollars, and make report thereof, giving the metes, bounds, and full description of the portion set apart as a homestead. If the appraisers find that the premises exceeded in value, at the time of their selection, the sum of five thousand dollars, and that they cannot be divided without material injury, they must report such finding, and thereafter the court may make an order for the sale of the premises and the distribution of the pro- ceeds to the parties entitled thereto. En. March 11, 1872. Am'd. 1873-4, 363. Cal. Rep. Cit. TS, 594; 76, 641; 81, 580; 81, 583; 122, 331; 144, 662; 144, 664. Appraisement — Generally: Ante, sec 1444. § 1477. Report of the appraisers. Majority and minority, which may be confirmed. Any two of the appraisers con- curring may discharge the duties imposed upon the three, and make the report. A dissenting report may be made by the third appraiser. The report must state fully the acts of the appraisers. Both reports may be heard and considered by the court in determining a confirmation or rejection of the majority report, but the minority report must in no case be confirmed. En. March 11, 1872. Cal. Rep. Cit 144, 662. § 1478. Day to be set for confirming or rejecting the re- port of the appraisers. Appeal. When the report of the appraisers is filed, the court must set a day for hearing any objections thereto, from anyone interested in the estate. Notice of the hearing must be given for such time, and in such manner as the court may direct:. If the court be satis- fled that the report is correct, it must be confirmed, other- wise rejected. In case the report is rejected, the court may appoint new appraisers to examine and report upon 5§ 1«9-H86 PROVISION FOH FAMILY. K>i the homestead, and similar proceedings may be hr.d for the confirmation or rejection of their report as upon the first report. En. March 11, 1872. Am'd. 1873-4, 3C3. Cal. Rep. Cit. 144, 6C2. § 1479. En. March 11, 1872. Rep. 1873-4, 364. Cal. Rep. Cit. 144, 6C2. S 1480. En. March 11, 1872. Rep. 1873-4, 364. Cal. Rep. Cit. 99, 451; 144, 662. 5 1481. En. March 11, 1872. Rep. 1878-4, 364. Cal. Rep. Cit. 47, 80; 72, 596; 144, 662. § 1482. En. March 11, 1872. Rep. 1873-4, 364. Cal. Rep. Cit. 144, 662. § 1483. En. March 11, 1872. Rep. 1873-4,. 364. Cal. Rep. Cit. 144. GC2. 5 1484. En. March 11, 1872. Rep. 1873-4, 364. Cal. Rep. Cit. 99, 451; 144, 662. § 1485. Costs, to whom chargeable. Persons succeed- ing to rights of homestead owners have all their powers and rights. The costs of all proceedings in the superior court provided for in this chapter, must be paid by the estate as expenses of atlTninistration. Persons succeeding by poirchase or otherv, ise to the interests, rights, and title of su-ccessors to homestea-ds, or to the right to have home- steads set apart to them, as in this chapter provided, have all the rights and benefits conferred by law on the persons whose interests and rights they acquire. En. March 11, 1872. Am'd. 1880, 89. Cal. Rep. Cit. 57, 443; 57, 444; 100, 166; 132, 612; 132, 613; 144, 662, § 1486. Certified copies of certain orders to be recorded. A certified copy of every final order made in pursuance of this article, by which a report is confirmed, property assigned, or sale confirmed, must be recorded in the office of the recorder of the county where the homestead prop- erty is situated. En. March 11, 1872. Cal. Rep. Cit. 144, 662. Certified copy — Recording: Post, sec. 1719. 555 CLAIMS AGAINST KSTATB. § 1490 CHAPTER VI. OF CLAIMS AGAINST THE ESTATE. § 1190. Notice to creditors. Additional notice. S H:i1. Time expressed in the notice. § 1402. Copy ajid proof oi nutlce to be filed and order made. § WM. Time within which claims against an estate must be pre- sented. § 14S4. Claims to be sworn to, and when allowed, to bear same inter- est as judgments § 1135. Superior judge may present claim, and action thereon. § 1496. Allowance and rejection of claims. I 1437. Approve claims or copies to be filed. Claims secured by Hens may be described. Lost claims. § 1498. Rejected claims to be sued for within three months. § 1499. Claims barred by statute of limitations. When and whom Judge may examine. § 1500. Claims must be presented before suit. 5 1.501. Time of limitation. § 1502. Claims In action pending at time of decease. § 1503. Allowance of claim in part. § 1504. Effect of judgment against executor. § 1505. Execution not to issue after death. If one Is levied the prop- erty may be sold. § 1506. What judgment Is not a Hen on real property of estate. § 1507. May refer doubtful claims. Effect of referee's allowance or rejection. § 1508. Trial by referee, how confirmed and Its effect. § 1509. Liability of executor, etc., for costs. § 1510. Claims of executor, etc., against estate. § 1511. Executor neglecting to give notice to creditors, to be removed. 5 1.t12. Executor to return statement of claims. § 1513. Payment of Interest-bearing claims. § 1514. Proceedings where claimant cannot be found. § 1490. Notice to creditors. Additional notice. Every executor or administrator must, immediately after his appointment, cause to be published in some newspaper of the county, if there be one, if not, then in such newspaper as may be designated by the court, a notice to the creditors of the decedent, requiring all persons having claims against him to exhibit them, with the necessary vouchers, to the executor or administrator, at the place of his residence or business, to be specified in the notice. Such notice must be published as often as the judge or court shall direct, but. not less than once a week for four weeks. The court or judge may also direct additional notice by publication or posting. In case such executor or administrator resigns, or is removed, before the time expressed in the notice, his §§ 1491-14SJ CLAIMS AGAINST ESTATE. K« successor must give notice only for the unexpired time allowed for such presentation. En. March 11, 1872. Cal. Rep. Cit 59, 43; 67. 639; 79, 12; 88. 33; 105, 668; 111, 458; 111, 542; 119, 450; 127, 153; 14(, 108; 147, 110. Prob. Act, sec. 128. En. April 22. 1850. Rep. 1851, 489. En. 1851. 448. Am'd. 1861, 636. Cal. Rep. Cit. 21, 31; 38, 87; 55, 582. Publication of notice — How often: Post, sec. lioo. Two months' neglect — To give notice, causes revocation of letters: Post, sec. 1511. § 1491. Time expressed In the notice. The time ex- pressed in the notice must be ten months after its first publication when the estate exceeds in value the sum of ten thousand dollars, and four months when it does not. En. March 11, 1872. Cal. Rep. Cit. 59, 43; 77, 187; 88, 32; 105, 668; 112, 81; 119, 451; 147, 108; 147, 110. § 1492- Copy and proof of notice to be filed and order made. After the notice is given, as required by the pre- ceding section, a copy thereof, with the afl&davit of due publication, or of publication and posting, must be filed, and upon such affidavit or other testimony to the satisfac- tion of the court, an order or decree showing that due notice to creditors has been given, and directing that such order or decree be entered in the minutes and recorded, must be made by the court. En. March 11, 1872. Cal. Rep. Cit. Ill, 543; 147, 116. Prob. Act, sec 129. En. April 22, 1850. Rep. 1851, 489. Ku. 1851, 448. Am'd. 1861, 637. Affidavit of publication of notice: Post, sees. 2010, 2011. § 1493. Time within which claims against an estate must be presented. All claims arising upon contracts, whether the same be due, not due, or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever; provided, however, that when it is made to appear by the affidavit of the claimant, to the satisfaction of the court, or a judge thereof, that the claimant had no notice as provWed in this chapter, by reason of being out of the state, it may be presented at any time before a decree of distribution 557 CLAIMS AGAINST ESTATE. | MR Is entered. En. March 11, 1872. Am'd. 1873-4, 364; 1880. 89. Cal. Rep. Clt. 52, 235; 53, 85; 55, 584; 56, 299; 56, 300 56, 302; 56, 304; 59, 43; 66, 531; 72, 18; 77, 187 79, 10; 85, 443; 86, 440; 90, 395; 92, 435; 95, 107 95, 168; 95, 169; 95, 437; 95, 438; 98, 469; 96, 470 96, 474; 96, 476; 99, 503; 99, 507; lOG, 204; 109, 66 109, 425; 110, 83; 112, 84; 115, 464; 116, 664; 119, 66; 124, 574; 127, 592; 128, 392; 132, 152; 142, 594. Prob. Act, sec. 130. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1860, 17. Cal. Rep. Cit. 18, 427; 18, 430; 24, 497; 24, 501; S4, 264; 42, 497; 42, 506; 43, 494; 45, 436; 96, 469; 96, 470; 96, 476; 142, 475. Claim — Action none, unless claim presented: Sec. 1500; after reiection: Sec. 1498; pending at death, claim must be presented: Sec. 1502; affidavit: Sec. 1494; allowance or rejection of: Sees. 1496-1498, 1503; contingent: Sec. 1648; executor, action by: Sec. 1510; judgment on: Sees. 1504, 1509; interest on: Sees. 1494, 1513; judge of superior court may present: Sec. 1495; judgment against decedent: Sec. 1505; on mortgage or lien: Sec. 1500; action barred by statute: Sees. 1499, 1501; examination by judge: Sec. 1499; on mortgage, or lien. Sec. 1500; reference of: Sec. 1507; statement of claims: Sec. 1512. § 1494. Claims to be sworn to, and when allowed, to bear same interest as judgments. Every claim which is due, when presented to the executor or administrator, must be supported by the affidavit of the claimant, or some one in his behalf, that the amount is justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowl- edge of the affiant. If the claim be not due when pre- sented, or be contingent, the particulars of such claim must be stated. When the affidavit is made by a person other than the claimant, he must set forth in the affidavit the reason why it is not made by the claimant. The oath may be taken before any officer authorized to administer oaths. The executor or administrator may also require satisfactory vouchers or proofs to be produced in support of the ^laim. If the estate be insolvent no greater rate of interest shall be allowed upon any claim after the first publication of notice to creditors than is allowed on judg- §J Hri5, \\% CLAIMS AGAINST ESTATE. 658 ments obtained in the superior court. En. March 11, 1S72. Am'd. 1873-4, 365; 1880, 89. Cal. Rep. Cit. 52, 577; 56, 464; 56, 4G5; 58. 353; 67, 642; 72, 18; 86, 350; 91, 605; 92, 435; 96, 470; 96, 471; 103, 155; 126, 455; 126, 456; 127, 59; 127. 60; 127, 116; 133, 410; 133, 411; 134, 29; 135, 352; 146, 200. Prob. Act, sec. 131. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1860, 17; 1861, 637. Cal. Rep. Cit. 9, 636; 18. 427; 18, 430; 21, 31; 22. 99; 27, 354; 27, 355; 27, 357; 42, 178; 43, 494; 46, ICO; 55, 579; 56, 301; 56, 302; 96, 470; 96, 471. Claim on mortgage or lien: Post, sec. 1500. Claim paid without afEdavit and allowance when allowed executor: See post, sec. 1632. § 1495. Superior judge may present claim, and action thereon. Any judge of a superior court may present a claim against the estate of a decedent for allowance to the executor or administrator thereof, and if the execu- tor or administrator allows the claim, he must in writing designate some other judge of the superior court of the same or an adjoining county, who, upon the presentation of such claim to him, is vested with power to allow or re- ject it, and the judge presenting such claim, in case of its rejection by the executor or administrator, or by such judge as shall have acted upon it, has the same right to sue in a proper court for its recovery as other persons have when their claims against an estate are rejected. En. March 11, 1872. Am'd. 1880, 90. Cal. Rep. Cit 120, 651. § 1496. Allowance and rejection of claims. When a claim, accompanied by the affidavit required in this chap- ter, is presented to the executor or administrator, he must indorse thereon his allowance or rejection, with the day and date thereof. If he allow the claim, it must be pre- sented to a judge of the superior court for his approval, who must in the same manner indorse upon it his allow- ance or rejection. If the executor or administrator, or the judge, refuse or neglect to indorse such allowance or re- jection for ten days after the claim has been presented to him, such refusal or neglect may, at the option of the claimant, be deemed equivalent to a rejection on the tenth day; and if the presentation be made by a notary. B59 CLAIMS AGAINST ESTATE. 5 1497 the certificate of such notary, under seal, shall be prima facie evidence of such presentation and the date thereof. If the claim be presented to the executor or administrator before the expiration of the time limited for the presenta- tion of claims, the same is presented in time, though acted upon by the executor or administrator, and by the judge, after the expiration of such time. If the claim be payable in a particular kind of money or currency, it shall, if al- lowed, be payable only in such money or currency. En. March 11, 1872. Am'd. 1873-4, 365; 1880, 90. Cal. Rep. Cit. 66, 531; 66, 533; 67, 148; 72, 189; 98, 483; 98, 485; 116, 669; 127, 193; 127, 475; 129, 478. Prob. Act, sec. 132. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 637. Cal. Rep. Cit. 6, 670; 18, 427; 18, 430; 29, 372; 34, 226. Judge may approve claims In chambers: Ante, sec. 166. § 1497. Approved claims or copies to be filed. Claims secured by liens may be described. Lost claims. Every claim allowed by the executor or administrator, and ap- proved by a judge of the superior court, or a copy thereof, as hereinafter provided, must, within thirty days there- after, be filed in the court, and be ranked among the ac- knowledged debts of the estate, to be paid in due course of administration. If the claim be founded on a bond, bill, note, or any other instrument, a copy of such instru- ment must accompany the claim, and the original instru- ment must be exhibited, if demanded, unless it be lost or destroyed, in which case the claimant must accompany his claim by his affidavit, containing a copy or particular description of such instrument, and stating its loss or de- struction. If the claim, or any part thereof, be secured by a mortgage, or other lien which has been recorded in the office of the recorder of the county in which the land af- fected by it lies, it shall be sufficient to describe the mort- gage or lien, and refer to the date, volume, and page of its record. If, in any case, the claimant has left any or- iginal voucher in the hands of the executor or adminis- trator, or suffered the same to be filed in court, he may withdraw the same when a copy thereof has been already, or is then, attached to his claim. A brief description of every claim filed must be entered by the clerk in the regis- ter, showing the name of the claimant, the amount and character of the claim, rate of interest, and date of allow- ance. En. March 11, 1872. Am'd. 1880, 90. §§ 14?8, 1499 CLAIMS AGAINST ESTATK. WO Cal. Rep. Cit. 51, 217; 52, 577; 62, 415; 67, ISO; 72, 489; 82, 99; 85, 141; 8G, 32G; 96, 475; 109, 357; 112, 79; 125, 362; 128, 392; 133, 299; 135, 352; 146, 193. Prob. Act, sec. 133. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1860, 18; 1861, 638. Cal. Rep. Cit. 9, 636; 18, 428; 21, 29; 21, 31; 24, 501; 27, 355; 27, 356; 29, 380; 46, 161; 46, 316. Claims secured by mortgage, etc.; Post, sec. 1500. § 1498. Rejected claims to be sued for within three months. When a claim is rejected either by the executor or administrator, or a judge of the superior court, the holder must bring suit in the proper court against the executor or administrator within three months after the date of its rejection, if it be then due, or within two months after it becomes due, otherwise the claim shall be forever barred. En. March 11, 1872. Am'd. 1880, 91. Cal. Rep. Cit. 67, 148; 67. 640; 79, 275; 79, 277; 93, 170; 96, 470; 98, 485; 98, 486; 108, 292; 115, 464; 116, 654; 116, 666; 124, 574; 127, 116; 127, 193; 127, 460; 129, 478; 129, 479; 132, 457; 132, 458; 133, 300; 133, 301; 136, 13; 145, 524; 145, 525. Prob. Act, sec. 134. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 18, 428; 18, 430; 21, 29; 34, 226; 96, 470. Time for bringing suit: Post, sec. 1501. Statute of limitations, generally: Ante, sees. 335-363; Tacancy in administration does not affect: Post, sec. 1501. Time for bringing action after death: Ante, sec. 353. § 1499. Claims barred by statute of limitations. When and whom judge may examine. No claim must be allowed by the executor or administrator, or by a judge of the superior court, which is barred by the statute of limita- tions. When a claim is presented to a judge for his allow- ance, he may, in his discretion, examine the claimant and others on oath, and hear any legal evidence touching the validity of the claim. En. March 11, 1872. Am'd. 1880, 91. Cal. Rep. Cit. 66, 190; 66, 531; 66, 532; 77, 187; 110, 84; 126, 456; 127, 193; 127, 592; 128, 338; 132, 454; 133, 407. Prob Act, sec. 135. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1864, 370. Cal. Rep. Cit. 2, 386; 18, 428; 56, 302. KL CL-^IMS AGAINST ESTATE. §§ 1500-1502 § 1500. Claims must be presented before suit. No holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the execQtor or administrator, except in the following case: An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against any other property cf the estate is expressly waived in the complaint, but no counsel fees shall be recovered in such action unless such claim be so presented. En. March 11, 1872. Am'd. 1873-4, 366; 1875-6, 103. Cal. Rep. Cit. 52, 235; 56, 299; 56, 302; 56, 303; 56, 304 57, 408; 62, 26; 65, 575; 66, 531; 67, 180; 77, 56 77, 187; 79, 10; 79, 12; 79, 410; 82, 99; 83, 443 85, 443; 86, 327; 90, 395; 90, 396; 95, 167; 95, 437 95, 438; 96, 469; 96, 473; 98, 486; 89, 507; 99, 508 99, 509; 100, 553; 105, 47; 106, 204; 106, 205; 109, 67 109, 68; 109, 69; 110, 83; 110, 338; 112, 78; 116, 357 119, 66; 119, 67; 121, 656; 124, 231; 124, 574; 125, 361 127, 54; 127, 192; 127, 277; 129, 478; 131, 673; 132, 602; 133, 95; 133, 98; 135, 352; 136, 13; 146, 656. Prob. Act, sec. 136. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 6, 393; 18, 428; 21, 29; 24, 501. With respect to encumbrances upon the homestead: See sec. 1475, ante. § 1501. Time of limitation. The time during which there shall be a vacancy in the administration must not be included in any limitations herein prescribed. En. March 11, 1872. Cal. Rep. Cit. 129, 478. Prob. Act, sec. 137. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1502. Claims in action pending at time of decease. If an action Is pending against the decedent at the time of his death, the plaintiff must in like manner present his claim to the executor or administrator for allowance or rejection, authenticated as required in other cases; and no recovery shall be had in the action unless proof be made of the presentations required. En. March 11, 1872. Cal. Rep. Cit. 52, 227; 79, 10; 79, 11; 89, 4; 95, 437; 95, 438; 99, 503; 99, 507; 99, 508; 9S, 509; 106, 204; 107, 52; 107, 53; 123, 22; 123, 469; 129, 479; 133, 95; 133, 96; 133, 98. Code Civil Proc— 36. ({ 1503-1506 CLAIMS AaAlNST KSTATBJ. »6« Prob. Act. sec. 138. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Clt. 27, 355; 42, 132; 42, 134; 50, 42. Effect of judgment against executor: Post, sec. 1504. § 1503, Allowance of claim In part. Whenever any claim is prpsented to an executor or administrator, or to a judge, and he is willing to allow the same in part, he must state in his indorsement the amount he is willing to allow. If the creditor refuse to accept the amount allowed in satisfaction of his claim, he shall recover no costs in any action therefor brought against the executor or adminis- trator, unless he recover a greater amount than that of- fered to be allowed. En. March 11, 1872. Am'd. 1880, 91. Cal. Rep. Cit. 85, 142; 112, 88. Prob. Act, sec. 139. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Clt. 9, 636; 21, 31. § 1504. Effect of Judgment against executor. A judg- ment rendered against an executor or administrator, upon any claim for money against the estate of his testator or Intestate, only establishes the claim in the same manner as if it had been allowed by the executor or administrator and the judge; and the judgment must be that the executor or administrator pay, in due course of administration, the amount ascertained to be due. A certified transcript of the original docket of the judgment must be filed among the papers of the estate in court. No execution must is- sue upon such judgment, nor shall It create any lien upon the property of the estate, or give to the judgment creditor any priority of payment. En. March 11, 1872. Am'd. 1880, 91. Cal. Rep. Clt. 52, 227; 70, 185; 74, 567; 88, 647; 93, 17; 121, 638; 124, 222; 132, 511; 133, 301; 138, 304; 138, 305; 138, 306; 141, 16. Prob. Act, sec. 140. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 6, 413; 9, 127; 9, 136; 21, 30; 29, 363; 29, 366; 29, 368; 29, 373; 32, 397; 84, 226; 38, 87; 38, 878; 46, 315; 46, 317. § 1505. Execution not to Issue after death. If one la levied tiie property may be sold. Vv'^hen any judgment has 563 CLAIMS AGAINST ESTATE. {g 1508, 1507 been rendered for or against the testator. Intestate In hia lifetime, no execution shall issue thereon after his death, except as provided in section six hundred and eighty-six. A judgment against the decedent for the recovery of money must be presented to the executor or administrator lllte any other claim. If execution Is actually levied upon any property of the decedent before his death, the same may be sold for the satisfaction thereof; and the officer making the sale must account to the executor or administrator for any surplus in his hands. A Judgment creditor having a judg- ment which was rendered against the testator or intestate In his lifetime, may redeem any real estate of the decedent from any sale under foreclosure or execution. In like man- ner and with like effect as if the judgment debtor were still living. En. March 11, 1872. Am'd. 187S-4, 413. Cal. Rep. Cit. 65, 519; 86, 121; 86, 122; 99, 582; 124, 230; 138, 259; 138, 304; 138, 305; 188, 306. Prob. Act, sec. 141. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 638. Cal. Rep. Cit. 9, 127; 19, 100; 22, 99; 29, 373; 37, 143; 88, 378; 55, 579. § 1506. What Judgment is not a lien on real property of estate. A judgment rendered against a decedent, dying after verdict or decision on an issue of fact, but before Judgment is rendered thereon, is not a lien on the real property of the decedent, but Is payable In due course of administration. En. March 11, 1872. Cal. Rep. Cit. 124, 230; 124, 232. § 1507. May refer doubtful claims. Effect of referee's allowance or rejection. If the executor or administrator doubts the correctness of any claim presented to him, he may enter Into an agreement, in writing, with the claimant, to refer the matter in controversy to some disinterested person, to be approved by the superior court, or a judge thereof. Upon filing the agreement and approval of such court or judge, in the office of the clerk of the court for the county In which the letters testamentary or of admin- istration were granted, the clerk must enter a minute of the order referring the matter in controversy to the person so selected, or. If the parties consent, a reference may be had in the court; and the report of the referee, if con- firmed, establishes or rejects the claim the same as If it §§ 150S-1510 CLAIMS AGAINST ESTATE. 664 had been allowed or rejected by the executor or adminis- trator and judge. En. March 11, 1872. Am'd. 1880, 91. Cal. Rep. Clt. 69, 80; 104, 245. Prob. Act, sec. 142. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 638. § 1508. Trial by referee, how confirmed and Its erfect. The referee must hear and determine the matter, and make his report thereon to the court in which his appointment Is entered. The same proceedings shall be had in all re- spects, and the referee shall have the same powers, be entitled to the sa::ne compensation, and subject to the same control, as in ether cafles of reference. The court may remove the referee, s.ppoint another In his place, set aside or confirm his report, and adjudge costs, as In actions against executors or administrators, and the judgment of the court thereon shall be as valid, and effectual. In all respects, as If the same had been rendered In a suit com- menced by ordinary process. En. March 11, 1872. Cal. Rep. Clt. 104, 246; 104, 247. Prob. Act, sec. 143. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 639. Reference: Ante, sees. 638-645. § 1509. Liability of executor, etc., for costs. When a judgment is recoA-ered, with costs, against any executor or administrator, he shall be individually liable for such costs, but they must be allowed him in his administration ac- counts, unless it appears that the suit or proceeding In which the costs were taxed was prosecuted or defended without Just cause. En. March 11, 1872. Cal. Rep. Clt. 93, 572; 99, 479; 108, 258; 126, 371; 128, 337; 128, 338. Prob. Act, sec. 144. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. '* Cal. Rep. Clt. 46, 233. § 1510. Claims of executor, etc., against estate. If the executor or administrator is a creditor of the decedent, his claim duly authenticated by affidavit must be presented for allowance or rejection to a judge of the superior court, and its allowance by the judge Is sufficient evidence of Its 5«5 CLJi.IMS AGAINST ESTATE. }§ 1511. 1512 correctness, and must be paid as other claims in due course of administration. If, however, the ju-dge reject the claim, action thereon may be had against the estate by the claimant, and summons must be served upon the judge, who may appoint an attorney, at the expense of the estate, to defend the action. If the claimant recover no judgment, he must pay all costs, including defendant's reasonable attorney's fees, to be fixed by the court. En. March 11, 1872. Am'd. 18S0, 92. Cal. Rep. Cit. 52, 577; 67. 244; 78, 62G; 78, 627; 92, 436; 121, 637; 121, 638; 125, 361; 147, 21; 147, 460. Prob. Ax;t, sec. 145. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1872, 52. Cal. Rep. Cit. 21, 31. Claim: Ante, sec. 1493. § 1511. Executor neglecting to give notice to creditors, to be removed. If an executor or administrator neglects, for two months after his appointment, to give notice to creditors, as prescribed by this chapter, the court must revoke his letters, and appoint some other person in his stead, equally or the next in order entitled to the appoint- ment. En. March 11, 1872. Cal. Rep. Cit. 127, 429. Prob. Act, sec. 146. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1512. Executor to return statement of claims. At the same time at which he is required to return his inventory, the executor or administrator must also return a statement of all claims against the estate which have been presented to him, if so required by the court, or a judge thereof, and from time to time thereafter he must present a statement of claims subsequently presented to him, if so required by the court, or a judge thereof. In all such statements he must designate the names of the creditors, the nature of each claim, when it became due, or will become due, and whether it was allowed or rejected by him. En. March 11, 1872. Am'd. 1880, 92. Cal. Rep. Cit. 67, 640. Prob. Act, sec. 147. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit 9, 636; 21, 32. |§ 1313. 1514 CLAIMS AGAINST ESTATE. GC6 § 1513. Payment of interest-bearing claims. If there be any debt of the decedent bearing interest, whether pre- sented or not, the executor or administrator may, by order of the court, pay the amount then accumulated and unparl, or any part thereof, at any time when there are sufficient funds properly applicable thereto, whether said claim be then due or not; and interest shall thereupon cPAse to accrue upon the amount so pai-d. This section does not apply to existing debts, unless the creditor consent to accept the amount. En. Stats. 1873-4, 3C6. Cal. Rep. Cit. 106, 155; 120, 700; 143, 483. Payment of debts of estate, generally: Post, sees. 1643 et seq. § 1514. Proceedings where claimant cannot be found. Whenever any claim has been presented to an executor or administrator, and to the court, and has been allowed and approved, but the sajne shall not have been paid, and the estate is in all other respects ready to be closed, if it be made to appear to the satisfaction of the court or judge, by affidavit, or by testimony taken in open court, that the same cannot be, and has not been, paid because the claim- ant cannot be found, the court or jud'ge shall make an order fixing the amount of said claim, with interest, if any, and directing the executor or administrator to deposit the amount with the county treasurer of the county in which the estate is being probated, who shall give a receipt for the same, and who shall be liable upon his official bond therefor. Such executor or administrator shall at once make the deposit in accordance with such order of court and shall forthwith proceed to close up and settle such estate. Upon the final settlement of his accounts, the re- ceipt of such treasurer shall be received as a proper voucher for the payment of such claim, and shall have the same force and effect as if executed by such claimant. When the amount so deposited is not claimed within five years the court or judge, upon su-ch showiug by the affidavit of the county treasurer, must direct the same to be de- posited in the state treasury for the benefit of such claim- ant, or his legal representative, to be paid to him, whenever, within five years after such deposit, proof to the satisfaction of the state controller and state treasurer is produced that he is entitled thereto. When so claimed, the evidence and the joint order of the controller and treasurer must be filed by the treasurer as his voucher, and the 567 SALES AND CONVEYANCES. | 1518 amount of the claim paM to the claimant, or his le^al representative, on filing the proper receipt. If no one claims the amount, as herein provided, the claim devolves and escheats to people of the state of California and shaJl he placed by the state treasurer to the credit of the school fund. This section shall be applicable to any and all estates now pendin-g in which a decree of final discharge has not been granted. En. Stats. 1903, 203. Cal. Rep. Cit 65, 518. CHAPTER Vn. OF SALES AND CONVEYANCES OF PROPERTY OF DECBH5ENT3. Article I. Sales In General, §§ 1516-1519. II. Sales of Personal i'roperty, §§ 1522-152S. III. Summary Sales of Mines and Mining Interests, 5§ 1529-1533. rv. Sales of Real E.state, Interesta Therein, and Confirmation Thereof, §§ 1536-1576. Y. Mortgages and Leases of Real Estate, §§ 1577-1579. ARTICLE L BALES IN GENEBAl.. 5 1518. Estate chargeable with debts. No priority. § 1517. No sales valid except by order of superior court. § 1518. Petitions for orders of sale. § 1519. But one petition, order, and sale must be hail when it la pos- sible to do so. § 1516. Estate chargeable wtth debts. No priority. All the property of a decedent shall be chargeable with the payment of the debts of the deceased, the expenses of ad- ministration, and the allowance to the family, except as otherwise provided in this code, and in the Civil Code. And the said property, personal and reaJ, may be sold as the court may direct. In the manner prescribed in this chapter. There shall be no priority as between personal and real property for the above purposes. En. March 11, 1872. Am'd. 1873-4, 367. Cal. Rep. Cit. 57, 459; 67, 639; 120, 92; 131, 119; 142, 456. Prob. Act, sec. 115. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 20, 313; 31, 616. All property chargeable for debts, etc.: Civ, Code, sec. 1358; order of appropriation: Civ. Code, sec 1359; and see sees. 1560-1564, post. {§ 1517-1513 SAL.E3 AND CONVEYANCES. SW Personal and real property, appro:; iated without dis- tinction: Post, sec. 15G3. Sold as the court may direct: Post, see. 1517. A contract for th3 purchase of real estate may be sold: Post, sees. 15G5 et seQ. Sale, executor, etc., cannot buy at, or be interested in: Post, sec. 15YS. S 1517. No sales valid except by order of superior court. No sale of any property of an estate of a decedent is valid unless made under order of the superior court, except as otherwise provided in this chapter. All sales must be under oath reported to and confirmed by the court before the title to the property soM passes. En. MarcL 11, 1872. Am'd. 1880, 92. Cal. Rep. Cit. 49, 495; 50, 99; 63, 18; 104, 412; 114, 660; 115, 33; 115, 205; 131, 164; 144, 126. Prob. Act, sec. 148. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 639. Cal. Rep. Cit 9, 127; 18, 303; 21, 29; 21, 44. Valid sales, where property is mortgaged: Post, sec. 1569. § 1518. Petitions for orders of sale. All petitions for orders of sale must be in writing, setting forth the facts showing the sale to be necessary, and, upon the hearing, any person interested in the estate may file his written objections, which must be heard and determined. A failure to set forth the facts showing the sale to be neces- sary will not invalidate the subsequent proceedings, if the defect be supplied by the proofs at the hearing, and the general facts showing the necessity be stated in the order directing the sale. En. March 11, 1872. Am'd. 1873-4, 367. Prob. Act, sec. 149, En. April 22, 1850. Rep, 1851, 489. En. 1851, 448. Cal. Rep. Cit. 9, 636. § 1519. But one petition, order, and sale must be had when it is possible to do so. When it appears to the court that the estate is insolvent, or that it will require a sale of all the property of the estate of every character, to pay the family allowance, expenses of administration, and debts, there need be but one petition filed, but one order of saJe made, and but one sale had, except In the case of sea BAT.W3 AJTD CONVEYANCES. § 152J perishable property, which may be sold as provided in section fifteen hundred and twenty-two. The court, when a petition for the sale of any property for any of the pur- poses herein named is presented, must inquire fully into the probable amount required to make all such payments, and if there be no more estate than suffi'Cient to pay the same, may require but one proceeding for the sale of the entire estate. In such case the petition must set forth sub- stantially the facts required by section fifteen hundred and thirty-seven. En. March 11, 1872. Am'd. 1873-4, 367; 1880, 92. Cal. Rep. Cit. 57, 459. Orders, generally, in probate matters: Post, sec. 1704. One petition for realty, sale of personalty on: Post, sees. 1536, 1639. ARTICLE IL SALES OF PERSONAL, PROPERTY. § 1522. Perishable and depreciating property to be sold. § ir.L'3. Order to sell personal property. § 1524. Partnership Interests and choses In action, how sold. § 1525. Order of sale, what to direct and what to be first stdd. § 1526. Sale of personal property. § 1627. Sale of personal property. 9 1522. Perishable and depreciating property to be sold. At any time after receiving letters, the executor, adminis- trator, or special administrator may apply to the court or Judge and obtain an order to sell perishable and other personal property likely to depreciate in value, or which will incur loss or expense by being kept, and so much other personal property as may be necessary to pay the allowance made to the family of the decedent The order for the sale may be made without notice; but the executor, administrator, or special administrator is responsible for the property, unless, after making a sworn return and on a proper showing, the court shall approve the sale. En. March 11, 1872. Cal. Rep. Cit. 57, 459; 106, 433; 129, 89. Prob. Act, sec. 150. En. April 22, 1850. Rep. 1851, 48d» En. 1851, 448. Am'd. 1860, 175; 1861, 639. Cal. Rep. Cit. 9, 636; 21, 32. Petition: Ante, sec. 1518. Order for the sale: Post, sec. 1525. |§ 1523-1525 SALES AND CON VICYANCES. 670 § 1523. Order to sell personal property. If claims against the estate have been allowed, and a sale of property is necessary for their payment, or for the expenses of ad- ministration, or for the payment of legacies, the execu- tor or administrator may apply for an order to sell so much of the personal property as may be necessary therefor. Upon filing his petition, notice of at least five days must be given of the hearing of the application, either by post- ing notices or by advertising. He may also make a similar application from time to time, so long as any personal property remains in his hands, and sale thereof is neces- sary. If it appear for the best interests of the estate, he may, at any time after filing the inventory, in like manner, and after giving like notice, apply for and obtain an order to sell the whole of the personal property belonging to the estate, whether necessary to pay debts or not. En. March 11, 1872. Am'd. 1873-4, 368; 1880, 93. Cal. R^. Cit. 57, 459. Notice by advertising: Post, sec. 1705. S 1524. Partnership interests and choses In action, bow sold. Partnership Interests or interests belonging to any estate by virtue of any partnership formerly existing, in- terest in personal property pledged, and choses in action, may be sold in the same manner as other personal prop- erty, when it appears to be for the best interest of the estate. Before confirming the sale of any partnership in- terest, whether made to the surviving partner or to any other person, the court or judge must carefully inquire into the condition of the partnership affairs, and. must examine the surviving partner, if in the county and able to be pres- ent in court. En. March 11, 1872. Cal. Rep. Cit. 104, 412; 114, 661; 131, 164. Partnership interest: Post, sec 1585. § 1525. Order of sale, what to direct and what to be first sold. If it appear that a sale is necessary for the pay- ment of debts or the family allowance, or for the best Interest of the estate and the persons interested in the property to be sold, whether it is or is not necessary to pay tie debts or family allowance, the court or judge must order it to be made. In making orders and sales for the payment of debts or family allowance, such articles as are 571 SALES AND CONVEYANCES. S§ 1526. 1527 not necessary for the support and subsistence of the family of the decedent, or are not specially bequeathed, must be first sold, anti the court or judge must so direct En. March 11, 1872. Am'd. 1873-4, 368. Cal. Rep. Cit. 57, 459, Prob. Act, sec. 151. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1860, 175; 1861, 639. Cal. Rep. Cit. 48, 193. § 1526. Sale of personal property. The sale of personal property must be made at public auction for such money or currency as the court may direct, and after public notice given for at least ten days by notices posted in three public places in the county, or by publication in a news- paper, or both, containing the time and place of sale, and a brief description of the property to be sold, unless for good reason shown the court, or a judge thereof, orders a private sale or a shorter notice. Public sales of such prop- erty must be made at the courthouse door, or at the resi- dence of the decedent, or at some other public place; but no sale shall be made of any personal property which is not present at the time of sale, unless the court otherwise order. En. March 11, 1872. Am'd. 1873-4, 369; 1880, 93. Prob. Act, sec. 152. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1855, 299; 1861, 640. Prob. Act, sec. 153. En. April 22, 1850. Rep. 1851, 489 En. 1851, 448. Am'd. 1861, 640. § 1527. Sale of personal property of deceased person. Whenever it appears to the court on any hearing of an ap- plication for a sale of real property, that it would be for the interest of the estate that personal property of the es- tate, or some part of such property, should first be sold, the court may decree the sale of sa.id personal property, or any part of it, and the sale thereof shall be conducted in the same manner as if the application had been made for the sale of such personal property in the first instance. En. 1905, 242. Cal. Rep. Cit 104, 111. By Bome unaccountable mistake the present section 1639, which con- cerns sales of personal property, is placed In the wrong chapter, to wit: that entitled "Accounting and Settlement by Executors an-J Administrators." It Is, therefore, repealed, and a new section, 1527 containing exactly the same provisions as the old section 1639, 'is In- serted In the proper chapter, to wit: that concerning "Sales of Per- taaal Prc*>erty." — Co47. Notice of sale. 5 1648. Time and place. I 1549. Private sale of real estate, bow made, and notice. Bids, when and how received. } 1550. Ninety per cent of appraised value must be offered. § 1551. Purchase money on sale on credit, how secured. § 1552. Return of proceedings and hearing. Setting aside sale. Re- sale. § 1553. May file objections, when and who. § 1554. When order of confirmation is to be made and when not. § 1555. Conveyances. § 1656. Order of confirmation, what to state. § 1557. Sale may be postponed. § 1558. Notice of postponement. § 1559. Sale of real estate to pay legacies. (Repealed.) § 1560. Where payment of debts, etc., provided for by will. § 1561. Sale without order. § 1562. Where provision by will insufficient. § 1563. Estate subject to debts, etc. § 1564. Contribution among legatees. § 1565. Contract for purchase of lands may be sold, how. § 1566. Conditions of sale. § 1567. Purchaser to give bond. § 1568. Executor to assign contract. § 1569. Sales by executors or administrators of lands under mortgage or lien. § 1570. The holder of the mortgage or lien may purchase the lands. His receipt to the amount of his claim a valid payment. § 1571. Administrator and executor liable for misconduct in sale. § 1572. Fraudulent sales. § 1573. Limitation of actions for vacating sale, etc. § 1574. To what cases preceding section not to apply. § 1575. Account of sale to be returned. § 1576. Executor, etc., not to be purchaser. § 1536. When executor or administrator may se!l prop- erty. When a sale of property of the estate is necessary to pay the allowance of the family, or the debts outstanding against the decedent, or the debts, expenses, or charges «75 SALES AND CONVEYANCES. ! 1637 of administration or legacies; or when it appears to the satisfaction of the court that it is for the advantage, bene- fit, and best interests of the estate, and those interested therein that the real estate, or some part thereof, be sold, the executor or administrator may sell any real as well as personal property of the estate upon the order of the court; and an application for the sale of real property may also embrace the sale of personal property. En. March 11, 1872. Am'd. 1873-4, 369; 1880, 94; 1893, 212. Cal. Rep. Cit. 57, 459; 83, 349; 87, 482; 88, 584; 88, 588; 112, 178; 120, 92; 129, 87; 131, 670; 142, 379; 144, 668. Prob. Act, sec. 154. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 640. Cal. Rep. Cit. 13, 576; 16, 500; 20, 124; 20, 813; 22, 275; 36, 690; 48, 193; 50, 406; 55, 582; 189, 19. Sale of realty, authorized: Ante, sec. 1516; interest un- der contracts may be included: Post, sec. 1565; additional bond on: Ante, sec. 1389. § 1537. Verified petition for sale, what to contain. To obtain such order for the sale of real property, he must present a verified petition to the superior court, or a judge thereof, setting forth the amount of the personal estate that has come to his hands and how much thereof, if any, remains undisposed of; the debts outstanding against the decedent, as far as can be ascertained or estimated; the amount due upon thg family allowance or that will be due after the same has been in force for one year; the debts, expenses, and charges of administration already accrued, and an estimate of what will or may accrue during the ad- ministration; a general description of all the real property of which the decedent died seised, or In which he had any interest, or in which the estate has acquired any interest, and the condition and value thereof, and whether the same be community or separate property; the names of the legatees and devisees, if any, and the heirs of the de- ceased, so far as linown to the petitioner; and If said or- der for sale of real estate Is petitioned for on the ground that it is for the advantage, benefit, and best interests of the estate and those interested therein that a sale be made, the petition, in addition to the foregoing facts, must set forth in what way an advantage or benefit would accrue to the estate and those interested therein by such sale. If any of the matters herein enumerated, cannot be ascer- § 1538 SALES AND CONVEYANCES. 576 tained, it must be so stated In the petition; but a failure to set forth facts hereinbefore enumerated will not invali- date the subsequent proceedings if the defect be supplied by the proofs at the hearing and the general facts show- ing that such sale is necessary or that such sale is for the advantage, benefit, and best interests of the estate and those interested therein be stated in the decree. En. March 11, 1872. Aip'd. 1873-4, 370; 1880, 94; 1893, 212. Cal. Rep. Cit. 51, 565; 55, 314; 55, 315; 63, 17; 63, 18; 63, 347; 66, 389; 78, 599; 78, 600; 82, 176; 82, 549; 83, 846; 83, 349; 83, 351; 83, 355; 83, 356; 85, 152; 96, 667; 108, 339; 112, 178; 112, 180; 112, 268; 120, 424; 120, 425; 120, 611; 125, 257; 125, 397; 127, 458; 131. 119; 131, 670; 137, 185; 137, 186; 137, 187; 137, 188; 137, 189; 141, 641; 141, 642; 142, 379. Prob. Act, sec. 155. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 640. Cal. Rep. Cit. 13, 576; 16, 500; 19, 410; 20, 124; 20, 313; 20, 314; 33, 665; 36, 690; 36, 691; 50, 406; 54, 197; 189, 19; 139, 20. Petition: Sec. 1518. If executor omits to apply, any other person may: Sec. 1545; stating facts in order: Post, Bee. 1704. Return of sale: Ante, sec. 1517. Summary sale of mine: Ante, sees. 1529 et seq. § 1538. Order to persons interested to appear. If it ap- pears to the court or judge, from such petition, that it is necessary, or that it would be for the advantage, benefit, and best interests of the estate and those interested there- in, to sell the whole or some portion of the real estate for the purposes and reasons mentioned in the preceding sec- tion or any of them, such petition must be filed, and an order thereupon made directing all persons interested in the estate to appear before the court, at a time and place specified, not less than four nor more than ten weeks from the time of making such order, to show cause why an order should not be granted to the executor or administrator for the sale of such estate. En. March 11, 1872. Am'd. 1893, 213. Cal. Rep. Cit. 122, 41; 122, 49; 125, 257; 125, 897; 139, 20; 139, 21. Prob. Act, sec. 156. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1801, 641. Cal. Rep. Cit. 13, 576; 16, 500; 16, 502; 16. 503; 20, 124; 20, 313; 36, 690; 139, 20. 677 SALE3 AND CONVEYANCES. §§ 1533, 1540 § 1539. Copy to be served, assent given, or publication made. A copy of the order to show cause must be per- sonally served on all persons interested in the estate, any general guardian of a minor so interested, and any legatee, or devisee, or heir of the decedent, provided they are resi- dents of the county, at least ten days before the time appointed for hearing the petition, or be published four successive weeks in such newspaper in the county as the court or judge shall direct. If all persons interested in th^ estate join in the petition for the sale, or signify in writing their assent thereto, the notice may be dispensed v/ith, and the hearing may be had at any time. En. March 11, 1872. Am'd. 1873-4, 370. Cal. Rep. Cit. 84, 446; 100, 402; 122, 41; 122, 49; 1^5, 257. Prob. Act, sec. 157. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 641. Cal. Rep. Cit. 20, 124; 33, 54; 139, 21. Prob. Act, sec. 159. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 641. Cal. Rep. Cit. 16, 503; 33, 52; 43, 547; 54, 197; 97, 366. Notice, personal service or: See ante, sec. 1011; post, sees. 1707-1709, 1710; publicatioxi or: Post, sec. 1705. Ouardi&n when infant a party: Ante, sees. 372, 373; post, sees. 1722, 1769. § 1540. Hearing after proof of service. Presentation of claims. The court, at the time and place appointed in such order, or at such other time to which the hearing may be postponed, upon satisfactory proof of personal: service or publication of a copy of the order, by affidavit or otherwise, if the consent in writing to such sale of all parties interested is not filed, must proceed to hear the petition, and hear and examine the allegations and proofs of the petitioners, and of all persons Interested in the estate who may oppose the application. All claims against the decedent not before pretexted, if the period ol presentation has not elapsed, may be presented and passed upon at the hearing. En. March U, 1872. Am'd. 1880, 95. Cal. Rep. Cit. 62, 415; 84, 446. Prob. Act, sec. 158. En. April 22, 1850. Rep. 1851, 483. En. 1851, 448. Am'd. 1861, 641. Cal. Rep. Cit. 20, lU. Code Civil Proc.— 37. §§ 1541-1543 SALES ANTD CONVEYANCES. 678 § 1541. Administrator, executor, and witnesses may be examined. The executor, administrator, and witnesses may be examined on oath by either party, and process to compel them to attend and testify may be issued by the court or judge, in the same manner and with like effect as in other cases. En. March 11, 1872. Am'd. 1880, 95. ■Prob. Act, sec. 160. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Procuring attendance, etc.: Post, sees. 1985 et seq. § 1542. To sell real estate or any part, when. If it ap- pears to the satisfaction of the court, or a judge thereof, that it is necessary, or that it is for the advantage, benefit, and best interests of the estate and those interested there- in, to sell a part of the real estate, and that by a sale thereof the residue of the estate, real and personal, or some specific part thereof, would be greatly injured or diminished in value, or subjected to expense, or rendered unprofitable, or that after any such sale the residue would be so small in quantity or value, or would be of such a character with reference to its future disposition among their heirs or devisees, as clearly to render it for the best interests of all concerned that the same should be sold, the court may authorize the sale of the whole estate or any part thereof, as in the judgment of the court is necessary, or for the advantage, benefit, and best interests of the estate and those interested therein. En. March 11, 1872, Am'd. 1893, 213. Cal. Rep. Cit. 57, 459; 125, 397; 138, 201; 142, 379; 142, 380. Prob. Act, sec. 161. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 642; 1866, 766. § 1543. Order of sale, when to be made. If it appears to the 'tisfaction of the court, after a full hearing upon the petitioh and an examination of the proofs and allegations of the parties interested, that a sale of the whole or some portion of the real estate is necessary for any of the causes mentioned in this article, or that a sale of the whole or some portion of the real estate is for the advantage, benefit, and best interests of the estate and those interested there- in, or if such sale be assented to by all the persons inter- ested, an order must be made to sell the whole, or so much and such parts of the real estate described In the 579 SALES AND CONVEYANCES. § 1544 petition as the court shall judge necessary, or for tho advantage, benefit, and best interests of the estate and those interested therein. En. March 11, 1872. Am'd. 1893, 213. Cal. Rep. Cit. 57, 423; 84, 446; 125, 397; 132, 48; 142, 379; 144, 127. Prob. Act, sec. 162. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 642. Cal. Rep. Cit. 20, 124; 36, 690. Order, need not recite facts: Post, sec. 1704. Personal estate: See, as to ordering a sale of personalty on application for sale of realty: Post, sec. 1639, § 1544. What the order of sale must contain. May be at public or private sale. The order of sale must describe the lands to be sold and the terms of sale, which may be for cash, or on credit not exceeding one year, payable in gross or in installments, and in such kind of money, with interest, as the court may direct. The land may be sold in one parcel or in subdivisions, as the executor or adminis- trator shall judge most beneficial to the estate, unless the court otherwise specially directs. If it appears that any part of such real estate has been devised, and not charged in such devise with the payment of debts or legacies, the court must order the remainder to be sold before that so devised. Every such sale must be ordered to be made at public auction, unless, in the opinion of the court, it would benefit the estate to sell the whole or some part of such real estate at private sale; the court may, if the same 's asked for in the petition, order or direct such real estate, or any part thereof, to be sold at either public or private sale, as the executor or administrator shall judge to be most beneficial for the estate. If the executor or adminis- trator neglects or refuses to make a sale under the order, and as directed therein, he may be compelled to sell, by order of the court, made on motion, after due notice, by any party interested. En. March 11, 1872. Cal. Rep. Cit. 56, 209; 57, 459; 66, 132; 75, 260; 120, 425; 125, 397; 127, 277. Prob. Act, sec. 163. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 642. Cal. Rep. Cit. 20, 124; 31, 606; 31, 616.31, 618. Contents of order: Post, sec. 1704. §§ 1545-1548 SALEiJ AND CONVEYANCES. 580 § 1545. Interested persons may apply for order of sale. Form of petition. If the executor or administrator neglects or refuses to apply for an order of sale when it is neces- sary, or when it is for the advantage, benefit and best in- terests of the estate and those interested therein that the real estate or some portion thereof be sold, any person in- terested may make application therefor in the same man- ner as the executor or administrator, and notice thereof must be given to the executor or administrator before the hearing. The petition of such applicant must contain as many of the matters set forth in section one thousand five hundred and thirty-seven as he can ascertain, and the de- cree of sale must fix the period of time within which the executor or administrator must make the sale. En.- March 11, 1872. Am'd. 1893, 214. Cal. Rep. Cit. 87, 482. Prob. Act, sec. 164. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 642. Cal. Rep. Cit. 55, 582. § 1546. To deliver copy of order to executor. En. March 11, 1872. Rep. 1873-4, 371. Prob. Act, sec. 165. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 643. § 1547. Notice of sale. When a sale is ordered, and is to be made at public auction, notice of the time anj place of sale must be posted in three of the most public places in the county in which the land is situated, and published in a newspaper, if there be one printed in the same county, but if none, then in such paper as the court may direct, for three weeks successively next before the sale. The lands and tenements to be sold must be described with common certainty in the notice. En. March 11, 1872. Cal. Rep. Cit. 73, 558; 84, 446. Prob. Act, sec. 166. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1866, 766. § 1548. Time and place. Sales at public auction must be made in the county where the land is situated; but when the land is situated in two or more counties it may be sold in either. The sale must be made between the hours of nine o'clock in the morning and the setting of 5S1 SALES AND CONVEYANCES. §§ 15«, 1550 the sun on the same day, and must be made on the day named in the notice of sale, unless the same is postponed. En. March 11, 1872. Prob. Act, sec. 167. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 643; 1864, 370; 1866, 766. Postponement of sale: Post, sees. 1557, 1558. § 1549. Private sale of real estate, how made, and notice. Bids, when and hew received. When a sale of real estate is ordered to be made at private sale, notice of the same must be posted up in three of the most public places in the county in which the land is situated, and published in a newspaper, if there be one printed in the same county, if none, then in such paper as the court or a judge thereof may direct, for two weeks successively next before the day on or after which the sale is to be made, in which the lands and tenements to be sold must be described with common certainty. The notice must state a day on or after which the sale will be made, and a place where of- fers or bids will be received. The day last referred to must be at least fifteen days from the first publication of notice; and the sale must not be made before that day, but must be made within six months thereafter. The bids or offers must be in writing, and may be left at the place designated in the notice, or delivered to the executor or administrator personally, or may be filed in the office of the clerk of the court to which the return of sale must be made, at any time after the first publication of the notice and before the making of the sale. If it be shown that it will be for the best Interest of the estate, the court or judge may, by an order, shorten the time of notice, which shall not, however, be less than one week, and may pro- vide that the sale may be made on or after a day less than fifteen, but not less than eight days from the first publica- tion of the notice, in which case the notice of sale, and the sale, may be made to correspond with such order. En. March 11, 1872. Am'd. 1880, 95. Cal. Rep. Cit. 75, 260; 84, 446; 112, 666; 121, 524; 121, 528. § 1550. Ninety per cent of appraised value must be offered. No sale of real estate at private sale shall be con- firmed by the court, unless the sum offered is at least ninety per cent, of the appraised value thereof, nor unless §§ 1551, 1552 SALES AND CONVEYANCES. 682 such real estate has been appraised within one year of the time of such sale. If it has not been so appraised, or if the court is satisfied that the appraisement is too high or too lov/, appraisers must be appointed, and they must make an appraisement thereof in the same manner as in case of an original appraisement of an estate. This may be done at any time before the sale or the confirmation thereof. En. March 11, 1872. Cal. Rep. Cit. 83, 357; 83, 358. § 1551. Purchase money on sale on credit, how secured. The executor or administrator must, when the sale is made upon a credit, take the notes of the purchaser for the pur- chase money, with a mortgage on the property to secure their payment. En. March 11, 1872. Prob. Act, sec. 168. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1552. Return of proceedings and hearing. Setting aside sale. Resale. Tue executor or administrator, after making any sale of real estate, must make a return of his proceedings to the court, which must be filed in the office of the clerk at any time subsequent to the sale. A hear- ing upon the return of the proceedings may be asked for in the return or by petition subsequently, and thereupon the clerk must fix the day for the hearing, of which notice of at lea it ten days must be given by the clerk by notices posted in three public places in the county or by publica- tion in a newspaper, and must briefly indicate the land sold, the sum for which it was sold, and must refer to the return for further particulars. Upon the hearing, the court must examine the return and witnesses in relation to the same, and if the proceedings were unfair or the sum bid disproportionate to the value, and if it appears that a sum exceeding such bid at least ten per cent exclusive of a new sale may be obtained, the court may vacate the sale and direct another to be had, of which notice must be given, and the sale in all respects conducted as if no previous sale had taken place. If an offer of ten per cent more in amount than that named in the return be made to the court, in writing, by a responsible person, it is in the dis- cretion of the court to accept such offer and confirm the sale to such person, or to order a new sale. En. March 11, 1872. Am'd. 1880, 96; 1891, 427. 5S3 SALES AND CONVETANCKS. §§ 1568, 1K4 Cal. Rep. Cit. 49, 495; 49, 496; 50. 99; 115, 205; 115, 206; 116, 409; 125, 433; 127, 544; 138, 197; 142, 157. Prob. Act, sec. 169. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 643; 1864, 370. Cal. Rep. Cit. 20, 125; 48, 385. Sales under will: Post, sec. 1561. Notice of petition for confirmation of sale, description of property by reference in: Post, sec. 1712. Attorney, court may appoint, to represent party: Post, sec. 1718. § 1553. May file objections, when and who. When re- turn of the sale is made and filed, any person interested in the estate may file written objections to the confirmation thereof, and may be heard thereon, when the return is heard by the court or judge, and may produce witnesses in support of his objections. En. March 11, 1872. Cal. Rep. Cit. 98, 605. Prob. Act, sec. 170. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 644. Cal. Rep. Cit. 9, 128. § 1554. When order of confirmation is to be made and wlien not. If it appears to the court that the sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, and that a greater sum, as above specified, cannot be obtained, or if the increased bid mentioned in section fifteen hundred and fifty-two be made and accepted by the court, the court must make an order confirming the sale, and directing conveyances to be executed. The sale, from that time, is confirmed and valid, and a certified copy of the order confirming it and directing conveyances to be executed, must be recorded in the ofiice of the recorder of the county in which the land sold is situated. If, after the confirmation, the purchaser neglects or refuses to comply with the terms of sale, the court may, on motion of the executor or administrator, and after notice to the purchaser, order a resale to be made of the property. If the amount realized on such resale does not cover the bid and the expenses of the previous sale, such purchaser is liable for the deficiency to the estate. En. March 11, 1872. Cal. Rep. Cit. 98, 613; 102, .575; 115, 200; 125, 433. §§ 1555-1G57 SALES AND CONVEYANCES. bSi Prob. Act, sec. 171. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1856, 20; 1861, 644. Cal. Rep. Cit. 9, 128; 9, 197; 19, 410; 20, 125; 49, 85. Proof of notice before sale and recital in: Post, sec. 1556; recording certified copy: Post, sec. 1719. § 1555. Conveyances. Conveyances must thereupon be executed to the purchaser by the executor or administrator, and they must refer to the orders -of the court authorizing and confirming the sale of the property of the estate, and directing conveyances thereof to be executed, and to the record of the order of confirmation in the office of the county recorder, either by the date of such recording, or by the date, volume, and page of the record, and such reference shall have the same effect as if the orders were at large inserted in the conveyance. Conveyances so made convey all the right, title, interest, and estate of the de- cedent in the premises, at the time of his death; if prior to the sale, by operation of law or otherwise, the estate has acquired any right, title, or interest in the premises, other than or in addition to that of the decedent at the time of his death, such right, title or interest, also passes by Buch conveyances. En. March 11, 1872. Am'd. 1880, 96. Cal. Rep. Cit. 57, 459; 144, 668; 144, 669. Prob. Act, sec. 172. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1856, 20; 1861, 644. Cal. Rep. Cit. 9. 128; 19, 410. § 1556. Order of confirmation, what to state. Before any order is entered confirming the sale, it must be proved to the satisfaction of the court that notice was given of the sale as prescribed, and the order of confirmation must show that such proof was made. En. March 11, 1872. Prob. Act, sec. 173. En. April 22, 1850. Rep. 1851 489. En. 1851, 448. Notice of sale, generally: Ante, sees. 1547, 1549. § 1557. Sale may be postpon::d. If, at the time ap- pointed for the sale, the executor or administrator deems it for the interest of all persons concerned therein that the same be postponed, he may postpone it from time to time, not exceeding in all three months. En. March 11, 1872. Prob. Act, sec. 174. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. 5S5 SALES AND CONVEYANCES. §§ ISSS-ljCl § 1558. Notice of postponement. In esse of a postyoue- ment, notice thereof must be given, by a public declaration, at the time and place first appointed for the sale, and if the postponement be for more than one day, further notice must be given, by posting notices in three or more public places in the county where the land is situated, or publishing the same, or both, as the time and circum- stances will admit. En. March 11, 1872. Prob. Act, sec. 175. En. April 22, 1850. Kep. ISbl, 4by. En. 1851, 448. Am'd. 1861, 644. Publishing notice: Post, sec. 1705. § 1559. Sale of real estate to pay legacies. En. March 11, 1872. Rep. 1873-4, 371. Prob. Act, sec. 176. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. at. 31, 606; 31, 616. § 1560. Where payment of debts, etc., provided for by will. If the testator makes provision by his will, or desig- nates the estate to be appropriated for the payment of his debts, the expenses of administration, or family expenses, they must be paid according to such provision or desig- nation, out of the estate thus appropriated, so far as the same is sufficient En. March 11, 1872. Cal. Rep. Cit. 57, 459; 120, 92; 145, 510; 145, 511. Prob. Act, sec. 177. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 31, 616; 31, 617. Insufficient provision, in will, effect of: Post, sec. 1562. Payment of debts and expenses, generally: Ante, sec. 1516. Order of appropriation: Civ. Code, sec. 1359. § 1561. Sale without order. When property is directed by the will to be sold, or authority is given in the will to sell property, the executor may sell any property of the estate without order of the court, and at either public or private sale, and with or without notice, as the executor may determine; but the executor must make return of such sales, as in other cases; and if directions are given in the will as to the mode of selling, or the particular §§ 1562, 1563 SALES AND CONVEYANCES. 6S6 property to be sold, such directions must be observed. In either case no title passes unless the sale be confirmed by the court. En. March 11, 1872. Am'd. 1873-4, 371; 1880, 96. Cal. Rep. at. 49, 495; 50, 99; 57, 459; 88, 587; 92, 186; 107, 593; 107, 595; 114, 660; 116, 407; 116, 408; 120, 92; 125, 432; 139, 654; 144, 126. Prob. Act, sec. 178. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 645. Cal. Rep. Cit. 31, 606; 32, 441; 49, 84; 49, 85; 49, 86; 49, 495. § 1562. Where provision by will insufficient. If the provision made by the will, or the estate appropriated therefor, is insufficient to pay the debts, expenses of ad- ministration, and family expenses, that portion of the es- tate not devised or disposed of by the will, if any, must be appropriated and disposed of for that purpose, according to the provisions of this chapter. En. March 11, 1872. Cal. Rep. Cit. 120, 92; 145, 509; 145, 510; 145, 511. Prob. Act, sec. 179. En. April 22, 1850. Rep. 1851, 483. En. 1851, 448. Cal. Rep. Cit. 31, 607. § 1563. Estate subject to debts, etc. The estate, real and personal, given by will to legatees or devisees, is liable for the debts, expenses of administration, and family expenses, in proportion to the value or amount of the sev- eral devises or legacies, but specific devices or legacies are exempt from such liability, if it appears to the court necessary to carry into effect the intention of the testator, and there is other sufficient estate. En. March 11, 1872. Cal. Rep. Cit. Izl, 277; 131, 119; 142, 456. Prob. Act, sec. 180. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 31, 607; 31, 609; 31, 616; 31, 619; 33, 667; 48, 193. Real and personal property alike chargeable: Ante, sec. 1516. 587 SALES AND CONVEYANCES. §§ 1564-1567 § 1564. Contribution among legatees. When an estate given by will has been sold for the payment of debts or expenses, all the devisees and legatees must contribute according to their respective interests to the devisee or legatee whose devise or legacy has been taken therefor, and the court, when distribution is made, must, by decree for that purpose, settle the amount of the several liabilities, and decree the amount each person shall contribute, and reserve the same from their distributive shares, respec- tively, for the purpose of paying such contribution. En. March 11, 1872. Am'd. 1880, 97. Cal. Rep. Cit. 142, 456. Prob. Act, sec. 181. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 31, 607; 31, 609; 31, 616; 33, 667; 48, 192. § 1565. Contract for purchase of lands may be sold, how. If a decedent, at the time of his death, was possessed of a contract for the purchase of lands, his interest in such land and under such contracts may be sold on the application of his executor or administrator, in the same manner as if he had died seised of such land, and the same proceed- ings may be had for that purpose as are prescribed in this chapter for the sale of lands of which he died seised, except as hereinafter provided. En. March 11, 1872. Prob. Act, sec. 182. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1566. Conditions of sale. The sale must be made subject to all payments that may thereafter become due on such contracts, and if there are any such, the sale must not be confirmed by the court until the purchasers execute a bond to the executor or administrator for the benefit and indemnity of himself and of the persons entitled to the Interest of the decedent in the lands so contracted for. In double the whole amount of payments thereafter to be- come due on such contract, with such sureties as the court or judge shall approve. En. March 11, 1872. Am'd. 1880, 97. Prob. Act, sec. 183. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1567. Purchaser to give bond. The bond must be conditioned that the purchaser will make all payments for §§ 1568, 1569 SALES AND CONVEYANCES. 688 such land that become due after the date of the sale, and will fully indemnify the executor or administrator and the persons so entitled, against all demands, costs, charges, and expenses, by reason of any covenant or agreement contained in such contract. En. March 11, 1872. Prob. Act, sec. 184. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1568. Executor to assign contract. Upon the confir- mation of the sale, the executor or administrator must execute to the purchaser an assi'gnment of the contract, which vests in the purchaser, his heirs and assigns, all the right, title, and interest of the estate, or of the persons entitled to the Interest of the -decedent, in the lands sold at the time of the sale, and the purchaser has the same rights and remedies against the vendor of such land as the decedent would have had if he were living. En. March 11, 1872. Prob. Act, sec. 185. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1569. Sales by executors or administrators of lands under mortgage or lien. When any sale is made by an executor or administrator, pursuant to provisions of this chapter, of lands subject to any mortgage or other lien, which is a valid claim against the estate of the decedent, and has been presented and allowed, the purchase money must be applied, after paying the necessary expenses of the sale, first, to the payment and satisfaction of the mort- gage or lien, and the residue. If any. In due course of ad- ministration. The application of the purchase money to the satisfaction of the mortgage or lien must be made with- out delay; and the land Is subject to such mortgage or lien until the purchase money has been actually so ap- plied. No claim against any estate, which has been pre- sented and allowed, is affected by the statute of limita- tions, pending the proceedings for the settlement of the estate. The purchase money, or so much thereof as may be sufficient to pay such mortgage or lien, with interest, and any lawful costs and charges thereon, may be paid Into the court, to be received by the clerk thereof, whereuiwn the mortgage or Hen upon the land must cease and the purchase money must be paid over by the clerk of the court without delay, in payment of the expenses of the sale, and in satisfaction of the debt to secure which the mort- 589 SALES AND CONVEYANCES. §§ 1570, 1571 gage or ether lien was taken, and the surplus, If any, at once returned to the executor or administrator, unless for good cause shown, after notice to the executor or admin- istrator, the court otherwise directs. En. March 11, 1872. Am'd. 1880, 97. Cal. Rep. Cit. 60, 260; 68, 54; 72, 548; 82, 100; 128, 391; 135, 352; 138, 304; 138, 305; 138, 308; 1422, 473; 142, 475; 146, 202. Prob. Act, sec. 186. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 645; 1863, 698. Cal. Rep. Cit. 9, 128; 18, 687; 27, 354; 27, 856; 29, 369. Prob. Act, sec. 187. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Claim secured by mortgage: Ante, sees. 1497, 1500. Deposit In court: Ante, sees. 572-74; post, sec. 2104. § 1570. The holder of the mortgage or lien may pur- chase the lands. His receipt to the amount of his claim a valid payment. At any sale, under order of the court, of lands upon which there is a mortgage or lien, the holder thereof may become the purchaser, and his receipt for the amount due him from the proceeds of the sale is a payment pro tanto. If the amount for which he purchased the property is insufficient to defray the expenses and discharge his mortgage or lien, he must pay to the court, or the clerk thereof, an amount suffijcient to pay such expenses. En. March 11, 1872. Am'd. 1880, 97. Cal. Rep. Cit. 128, 392; 138, 304. § 1571. Administrator and executor liable for miscon- duct in sale. If there is any neglect or misconduct in the proceedings of the executor in relation to any sale, by which any person Interested in the estate suffers damage, the party aggrieved may recover the same in an action upon the bond of the executor or administrator, or other- wise. En. March 11, 1872. Cal. Rep. Cit. 67, 248. Prob. Act, sec. 188. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Bond of executor, etc.: Ante, sec. 1388. §§ 1572-1574 SALES AND CONVEYANCES. 690 § 1572. Fraudulent sales. Any executor or adminis- trator who fraudulently sells any real estate of a decedent contrary to or otherwise than under the provisions of this chapter, is liable in double the value of the land sold, as liquidated damages, to be recovered in an action by the person having an estate of Inheritance therein. En. March 11, 1872. Cal. Rep. Cit. 67, 248. Prob. Act, sec. 189. En. April 22, 1850. Rep. 1851. 489. En. 1851, 448. Cal. Rep. Cit, 29, 35. Prohibited connection with sale: Post, sec. 1576. § 1573. Limitation of actions for vacating sale, etc. No action for the recovery of any estate soltl by an ex- e'^utor or a-dmlnlstrator, under the provisions of this chapter, can be maintained by any heir or other per- son claiming under the decedent, unless it be commenced within three years next after the settlement of the final account of the executor or administrator. An action to set aside the sale may be instituted and maintained at any time within three years from the discovery of the fraud, or other grounds upon which the action is based. En. March 11, 1872. Am'd. 1880, 112. Cal. Rep. Cit. 66, 111; 79, 15; 82, 180; 82, 181; 94, 250; 122, 42; 122, 44; 122, 49; 122, 50; 125, 259; 125, 260. Prob. Act, sec. 190. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 37, 380; 47, 168; 57, 388; 79, 15; 122, 44. Persons under disability, provision inapplicable to: Post, sec. 1574. Discovery of the fraud, within three years of: Ante, sec. 338, subd. 4. § 1574. To what cases preceding section not to apply. The preceding section shall not apply to minors or others under any legal disability to sue at the time when the light of action first accrues; but all such persons may com- mence an action at any time within three years after the removal of the disability. En. March 11, 1872. Cal. Rep. Cit. 82, 181; 121, 42; 122, 44; 122, 49; 122, 50. 591 SALES AND CONVEYANCES. §§ 1375, 1576 Prob. Act, sec. 191. En. April 22, 1850. Rep. 1851, 489. En. 1851. 448. Cal. Rep. Cit. 122, 44. § 1575. Account of sale to be returned. "WTien a sale has been made by an executor or administrator of any property of the estate, leal or personal, he must return to the court, within thirty days thereafter, an account of sales, verified by his affidavit, or in case of his absence ffom the county, or other inability, by the affidavit of his attorney. If he neglects to malie such return, he may be punished by attachment, or his letters may be revoked, one day's notice having been first given him to appear and show cause why such attachment should not issue, or such revocation should not be made. En. March 11, 1872. Am'd. 1880. 98; 1897, 58. Prob. Act. sec. 192. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Attachment for contempt: Ante, sees. 1212 et seq. Notice by citation: Post, sec. 1710; also, post, sees. 1707- 1709. . § 1576. Executor, etc., not to be purchaser. No ex- ecutor or ad-ministrator must, directly or indirectly, pur- chase any property of the estate he represents, nor must he be interested in any sale. En. March 11, 1872. Cal. Rep. Cit. 81, 509; 81, 515; 81, 516; 81, 517; 81. 519; 81, 520; 93. 120; 96, 668; 108, 341. Prob. Act, sec. 193. En. April 22, 1850. Rep. 1851, 489. En. 1851. 448. Cal. Rep. Cit. 29, 34; 29, 36; 48. 121. Purchase by administrator, etc, forbidden: Post, sec. 1617. 5§ ISn, 1578 SAL^S AND CONVEYANCES. B»a ARTICLE V. fNew article added Marct 15. 1887, Stats. 1887, p. 115. In effect immediately.] MORTGAGES AND LEASES OF REAL BfiTATB. 5 15TT. Mortgage of real property at decedent. § 1578. Proceedings to obtain order. § 1679. To obtain lease of realty. § 1577. Mortgage of real property of decedent. When- ever in any estate now being administered or ttiat may hereafter be administered it shall appear to the superior court, or a judge thereof, to be for the advantage of the estate to raise money upon a note or notes, to be secured by a mortgage of the real property of any decedent, or of a minor, or an incompetent person, or any part thereof, or to make a lease of said realty or any part thereof, the court or judge, as often as occasion therefor shall arise in the administration of any estate, may, on a petition, notice, and hearing as provided in this article, authorize, empower, and -direct the executor or administrator or guardian of such minor or incompetent person to mortgage such real estate or any part thereof, and to execute a note or notes to be secured by such mortgage, or to lease such real estate or any part thereof. En. Stats. 1887, 115. Am'd. 1891, 247; 1893, 72. Cal. Rep. Cit. 97, 457; 121, 650; 122, lOO; 131, 118; 131, 120; 131, 671; 133, 259; 144, 126; 146, 401. § 1578. Proceedings to obtain order. To obtain an order to mortgage such realty, the proceedirkgs to be taken and the effect thereof shall be as follows: First. The executor or administrator of any estate, or guardian of any minor or incompetent person, or any person interested in the estates of such decedents, minors, or incompetent persons, may file a verified petition show- ing: 1. The particular purpose or purposes for which it i3 proposed to make the note or notes and mortgage, which shall be either to pay the debts, legacies, or charges of ad- ministration, or to pay, reduce, extend, or renew some lien or mortgage already subsisting in said realty or some part thereof. 593 SALES AND CONVEYANCES. S 1578 2. A statement of the debts, legacies, charges of adminis- tration, liens or mortgages to be paid, reduced, extended, or renewed, as the case may be. 3. The advantage that may accrue to the estate from, raising the required money by note or notes and mortgage or providing for the payment, reduction, extension, or re- newal of the subsisting liens or mortgages, as the case may be. 4. The amount to be raised, with a general description of the property proposed to be mortgag^ed; and, 5. The names of the legatees and devisees, if any, and of the heirs of the deceased, or of the minor, or of the incom- petent person, as the case may be, so far as known to the petitioner. Second. Upon filing such petition, an order shall be made by the court or judge, requiring all persons inter- ested in the estate to appear before the court or judge, at a time and place specified, not less than four nor more than ten weeks thereafter, then and there to show cause why the realty (briefly indicating it), or some part thereof, should not be mortgaged for the amount mentioned in the petition (stating such amount), or such lesser amount as to the court or judge shall seem meet, and referring to the petition on file for further particulars. Third. The order to show cause may be personally served on the persons interested in the estate, at least ten days before the time appointed for hearing the petition, or may be published for four successive weeks in a newspaper of general circulation, published in the county. Fourth. At the time and at the place appointed in the order to show cause, or at such other time and place to which the hearing may be postponed (the power to make all needful postponements being hereby vested in the court or judge), having first received satisfactory proof of personal service or publication of the order to show cause, the court or judge must proceed to hear the petition and any objections that may be filed or presented thereto. Upon such hearing, witnesses may be compelled to attend and testify, in the same manner, and with like effect, as in other cases; and if, after a full hearing, the court or judge is satisfied that it will be for the advantage of the estate to mortgage the whole or any portion of the real estate, an order must be made authorizing, empowering, and direct- ing the executor or administrator, or the guardian of such minor or incompetent person, to make such mortgage, and Code Civil Proc— 38. { 1578 SALES AND CONVEYANCES. 694 a promissory note or notes to the lender, for the amount of the loan, to be secured by said mortgage; the order may direct that a lesser amount than that named in the peti- tion be borrowed, and may prescribe the maximum rate of interest and period of the loan, and may direct in what coin or currency it shall be paid, and require that the interest and the whole or any part of the principal be paid, from time to time, out of the whole estate or any part thereof, and that any buildings on the premises to be mortgaged shall be insured for further security of the len- der, and the premiums paid from such income. Fifth. After the making of the order to mortgage, the executor, administrator, or guardian of a minor or of an incompetent person shall execute and deliver a promissory note or notes for the amount and period specified in the order, and shall execute, acknowledge, and deliver a mort- gage of the premises, setting forth in the mortgage that it is made by authority of the order, and giving the date of such order. A certified copy of the order shall be recorded in the oflice of the county recorder of every county in which the encumbered land, or any portion thereof, lies. The note or notes and mortgage shall be signed by the executor, administrator, or guardian as such, and shall create no personal liability against the person so signing. Sixth. Every note or notes and mortgage so made shall be effectual to mortgage and hypothecate all the right, title, interest, and estate which the decedent, minor, or incom- petent person had in the premises described therein at the time of the death of such decedent, or at the time of the appointment of the guardian of such minor or of such in- competent person, or prior thereto, and any right, title, or interest in said premises acquired by the estate of such decedent, minor, or incompetent person, by operation of law or otherwise, since the time of the death of such de- cedent, or the appointment of the guardian of such minor or incompetent person. Jurisdiction of the court to admin- ister the estate of such decedent, minor, or incompetent person shall be effectual to vest such court and judge with jurisdiction to make the order for the note or notes and mortgage, and such jurisdiction shall conclusively inure to the benefit of the mortgagee named in the mortgage, his heirs and assigns. No irregularity in the proceedings shall impair or invalidate the same or the note or notes and mortgage given in the pursuance thereof, and the mort- gagee, his heirs and assigns, shall have and possess the 595 SALES AXD CONVEYANCES. § 1579 same rights and remedies on the note or notes and mort- gage as if it had been made by the decedent prior to his death, the minor after reaching the age of maturity, or the incompetent person when legally competent; provided, however, that upon any foreclosure, if the proceeds of the encumbered property are insuflBcient to pay the note or notes, and mortgage, no judgment or claim for any de- ficiency of such proceeds to satisfy the note or notes and mortgage, or the costs or expenses of sale, shall be had or allowed, except in cases where the note or notes and mort- gage were given to pay, reduce, extend, or renew a lien or mortgage subsisting on the realty, or some part thereof, at the time of the death of the decedent, and the indebted- ness secured by such lien or mortgage was an allowed and approved claim against his estate, or a lien upon the inter- est of the minor in said real estate at the time it vested in him, or upon the estate of the incompetent ut the time the incompetency of the incompetent person was so declared by the court; and provided also, that in cases affecting the estate of the deceased persons, the part of the indebtedness remaining unsatisfied must be classed and paia with other demands against the estate, as provided in article three, chapter ten, of title ( ^ven, part three, of this code, with respect to mortgages isisting at the time of death. En. Stats. 1887, 115. Am'c'. 1891, 247; 1893, 72. Cal. Rep. Cit. 97, 457; 120, 611; 121, 650; 127, 204; 131, US; 131, 120; ISl, 671; 131, 674; 133, 259; 145, 401. Subd. 1—139, 284; 144, 126. Subd. 3—97, 458. § 1579. To obtain lease of realty. To obtain an order to lease the realty, the proceedings to be taJten and the effect thereof shall be as follows: First. The executor, administrator, guardian of a minor or of an incompetent person, or any person interested in the estate of such decedents, minors, or incompetent per- sons, may file a verified petition showing: 1. The advantage or advantages that may accrue to the estate from giving a lease. 2. A general description of the property proposed to be leased. 3. The term, rental, and general conditions of the pro- posed lease. 4. The names of the legatees and devisees, if any, and of the heirs of the deceased, or of the minor, or of the in- competent person, so far as known to the petitioner. { 1579 SALBJS AND CONVETANCE». S9t Second. Order of court to show cause. Upon filing Buch petition an order shall be made by the court or judge requiring all persons interested in the estate to appear before the court or judge, at a time and place specified, not less than two nor more than four weeks thereafter, then and there to show cause why the realty (briefly in- dicating It) should not be leased for the period (stating it), at the rental mentioned in the petition (stating it), and referring to the petition on file for further particulars. Third. Service of order. The order to show cause may be personally served on the persons interested in the es- tate at least ten days before the time appointed for hearing the petition, or it may be published for two successive weelis in a newspaper of general circulation in the county. Fourth. Hearing; witnesses; appraisers; minimum ren- tal. At the time and place appointed to show cause, or at such other time and place to which the hearing may be I)ostponed (the power to make all needful postponements being hereby vested in the court or judge), the court or judge having first received satisfactory proof of personal service or publication of the order to show cause, must proceed to hear the petition, and any objections that may have been filed or presented thereto. Upon such hearing, witnesses may be compelled to attend and testify in the same manner and with like effect as in other cases, and the court may, in its discretion, appoint one or more, not exceeding three, disinterested persons to appraise the rental value of the premises, and direct that a reasonable com- pensation for the services, not exceeding five dollars p^r day, be paid by the estate. If, after a full hearing, the court or judge is satisfied that it will be for the advantage of the estate to lease the whole or any portion of the real estate, an order must be made authoriizng, empowering, and directing the executor, administrator, or the guardian to make such lease. The order may prescribe the minimum rental to be. received for the premises, and the period of the lease, which must in no case be longer than for ten years, and may prescribe the other terms and conditions of such lease. Fifth. Conditions of lease. After the making of the or- der to lease, the executor, administrator, or guardian of a minor or of an incompetent person shall execute, acknowl- edge, and deliver a lease of the premises for the term and period and with the conditions specified in the order, set- 697 SALES AND CONVEYANCES. J 1579 ting forth in the lease that it is made by authority of the order, and giving the date of such order. A certified copy of the order shall be recorded in the office of the county recorder of every county in which the leased land or any portion thereof lies. Sixth. Effect of lease; errors and omissions. Every lease so made shall be effectual to demise and let, at the rent, for the term, and upon the conditions therein pre- scribed, the premises described therein Jurisdiction of the court to administer the estate of the decedent, the minor, or of the incompetent person shall be effectual to vest such court and judge with jurisdiction to make the order for the lease, and such jurisdiction shall conclusively inure to the benefit of the lessee, his heirs and assigns. No omission, error, or irregularity in the proceedings shall im- pair or invalidate the same, or the lease made in pursuance thereof. En. Stats. 1887, 117. Am'd. 1891, 247; 1905, 149. Supp. Cal. Rep. Cit. 144, 126. The only change consists In the substitution of the word "ten'' for "five." to make this section correspond with the present form of sec- tion 718 of the Civil Code, which was amende-.l in 1903. Whoever amended the latter section at the last session of the le^slature for- got to amend this section of the Code of CivU Procedure to corre- spond with it. — Code Comniissloner'B Note. S laSl POWERS AND DUTIES. CHAPTER VIII. OF THE POWERS AND DUTIES OF EXECUTORS AND ADMIN- ISTRATORS, AND OF THE MANAGEMENT OF ESTATES. § 1581. Executors to take possession of the entire estate. § 1582. Actions may be maintained by and against executors and ad- ministrators. § 1583. May maintain actions for waste, conversion, and trerpass. § 1584. Executor and adminstrator may be sued for waste or trespass of decedent. § 15S5. Surviving partner to settle up business. Interest therein to be appraised. Account to be rendered. § 15S6. Actions on bond of executor or administrator may be brought by another administrator. § 1587. What executors are not parties to actions. § 1588. May compound. § 15S9. Recovery of property fraudulently disposed of by testator. § 1590. When executor to sue, as provided In preceding section. § 1591. Disposition of estate recovered. § 1581. Executors to take possession of the entire estate. The executor or administrator must take into his possession all the estate of the decedent, real and personal, and collect all debts due to the decedent or to the estate. For the pur- pose of bringing suits to quiet title, or for partition of such estate, the possession of the executors or administrators is the possession of the heirs or devisees; such possession by the heirs or devisees is subject, however, to the posses- sion of the executor or administrator, for the purposes of administration, as provided in this title. En. March 11, 1872. Cal. Rep. Clt. 57, 388; 57, 459; 69, 158; 70, 360; 109, 423; 110, 575; 112, 395; 119, 477; 121, 25; 126, 484; 131, 671; 134, 83; 136, 34; 137, 355. Prob. Act sec. 194. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 645. Cal. Rep. Cit. 17, 536; 20, 163; 20, 627; 42, 463; 43, 551; 44, 589; 57, 387; 57, 388. Possession of estate by executor etc.: Sec, 1452. Collection of debts, when no liability for failure: Sec 1615. Executor or administrator, suits by and against: Sees. 1582-1587, 1589, 1590. Heir may maintain ejectment and suit to quiet title dur- ing possession of executor, etc.: Sec. 1452. 699 POWERS AND DUTIES. §§ 1582-1584 § 1582. Actions may be maintained by and against exec- utors and administrators. Actions for the recovery of any property, real or personal, or for the possession thereof, or to quiet title thereto, or to determine any adverse claim thereon, and all actions founded upon contracts, may be maintained by and against executors and administrators in all cases in which the same might have been maintained by or against their respective testators or intestates, hin. March 11, 1872. Am'd. 1895, 81. Cal. Rep. Cit. 57, 241; 67, 570; 70, 360; 83, 512; 107, 112; 110, 575; 119, 550; 126, 32; 126, 484; 128, 635; 136, 33; 136, 36. Prob. Act, sec. 195. En. April 22, 1850. Rep. 1851, 489. En. 1S51, 448. Cal. Rep. Cit. 19, 117; 20, 163; 20, 627; 26, 123; 50, 658. Executors and administrators — Suits by, after substitu- tion: Ante, sec. 385; without joining beneficiaries: Ante, sec. 369; suits against, costs: Ante, sec. 1509. Suggestion of death where action by deceased pending: Ante, sec. 385. TbiJ right to maintain suits for the possession of the real property of the estate: Ante, sec. 1452. § 1583. May maintain actions for waste, conversion, and trespass. Executors and administrators may maintain ac- tion against any person who has wasted, destroyed, taken, or carried away, or converted to his own use, the goods of their testator or intestate, in his lifetime. They may als-o maintain actions for trespass committed on the real estate of the decedent in his lifetime. En. March 11, 1872. Prob. Act, sec. 196. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 19, 117. § 1584. Executor and administrator may be sued for waste or trespass of decedent. Any person or his personal representatives may maintain an action against the exec- utor or administrator of any testator or intestate who in his lifetime has wasted, destroyed, taken, or carried away, or converted to his own use, the goods or chattels of any such person, or committed any trespass on the real estate of such person. En. March 11, 1872. Cal. Rep. Cit. 57. 246; 108, 483. §§ 1585-1587 POWERS AND DUTIES. 600 Prob. Act, sec. 197, En. April 22, 1850. Rep. 1851, 4Sy. En. 1851, 448. § 1585. Surviving partner to settle up business. Interest therein to be appraised. Account to be rendered. When a partnership exists between the decedent, at the time of his death, and any other person, the surviving partner has the right to continue in possession of the partnership, and to settle its business, but the interest of the decedent in the partnership must be included in the inventory, and be ap- praised as such other property. The surviving partner must settle the affairs of the partnership without delay, and ac- count with the executor or administrator, and pay over such balances as may from time to time be payable to him, in right of the decedent. Upon the application of the executor or administrator, the court, or a judge thereof, may, whenever it appears necessary, order the surviving partner to render an account, and in case of neglect or refusal may, after notice, compel it by attachment; and the executor or administrator may maintain against him any action which the decedent could have maintained. En. March 11, 1872. Am'd. 1880, 98. Cal. Rep. Cit. 57, 459; 65, 111; 68, 396; 68, 397; 70, 582; 75, 462; 84, 94; 89, 551; 96, 72; 100, 614; 101, 562: 105, 190; 107, 606; 110, 574; 138, 237. Prob. Act, sec. 198. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 16, 118; 34, 263. Interest of decedent, in partnership, may be sold: Ante, sec. 1524, § 1586. Actions on bond of executor or administrator may be brought by another administrator. An adminis- trator may, in his own name, for the use and benefit of all parties interested in the estate, maintain actions on the same estate. En. March 11, 1872. Cal. Rep. Cit. 123, 438. Prob. Act, sec. 199. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Bond of executor or administrator: Sees. 1388 et seq. § 1587. What executors are not parties to actions. In actions by or against executors, it is not necessary to join «01 POWERS AND DUTIES. §§ IJSS, 15S9 those as parties to whom letters were issued, but who have not qualified. En. March 11, 1872. Prob. Act, sec. 200. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Parties, beneficiaries need not be joined: Ante, sec. 369. § 1588. May compound. Whenever a debtor of the de- cedent is unable to pay all his debts, the executor or administrator, with the approbation of the court, or a judge thereof, may compound with him and give him a discharge, upon receiving a fair and just dividend of his effects. A compromise may also be authorized when it ap- pears to be just, and for the best interest of the estate. En. March 11, 1872. Am'd. 1880, 98. Cal. Rep. CIt. 57, 343; 86, 144; 123, 676; 135, 40. Prob. Act, sec. 201. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'«l. 1861, 645. § 1589. Recovery of property fraudulently disposed of by testator. When there is a deficiency of assets in the hands of an executor or administrator, and when the de- cedent, in his lifetime, has conveyed any real estate, or any rights or interests therein with intent to defraud his creditors, or to avoid any right, debt, or duty of any per- son, or has so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator must commence and prosecute to final judgment any proper action for the recovery of the same; and may recover for the benefit of the creditor all such real estate so fraudulently conveyed; and may also, for the benefit of the creditors, sue and recover all goods, chattels, rights, or credits which have been so conveyed by the decedent In his lifetime, whatever may have been the manner of such fraudulent conveyance. En. March 11, 1872. Cal. Rep. CIt. 50, 302; 53, 715; 57, 241; 61, 152; 82, 160; 85, 547; 85, 549; 89, 352; 104, 222; 106, 108; 106, 109; 109, 667; 114, 529; 114, 535; 137, 158; 137, 170; 143, 614. Prob. Act, sec. 202. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. CIt. 48, 393. Executor or administrator may sue without joining bene- ficiaries: Ante, sec. 869. §§ 1590. 1591 POWERS AND DUTIES. 602 Power to bring action: Ante, sees. 1452, 1581-1583. Pradulent conveyances: Post, sees. 1590, 1591. § 1590. When executor to sue, as provided in preceding section. No executor or administrator is bound to sue for such estate, as mentioned in the preceding section, for the benefit of the creditors, unless an application of creditors, who must pay such part of the costs and expenses of the suit, or give such security to the executor or ad- ministrator therefor, as the court, or a judge thereof, shall direct. En. March 11, 1872. Ara'd. 1880, 98. Cal. Rep. Clt. 61, 152; 82, 160; 85, 547; 109, 667; 114, 535. Prob. Act, sec. 203. En. April 22, 1850. Rep. 1851, 489, En. 1851, 448. Cal. Rep. Cit. 48, 393. § 1591. Disposition of estate recovered. All real estate so recovered must be sold for the payment of debts, in the same manner as if the decedent had died seised thereof, upon obtaining an order therefor from the court; and the proceeds of all goods, chattels, rights, and credits so re- covered must be appropriated In payment of the debts of the decedent In the same manner as other property in the hands of the executor or administrator. En. March 11, 1872. Am'd. 1880, 98. Cal. Rep. Cit. 57, 241; 82, 160; 85, 547. Prob. Act, sec. 204. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. CONVfiYANCEJ. (S i5»7, 15»S CHAPTER IX. OF THE CONVEYANCE OF REAL ESTATE BY EXECUTORS AND ADMINISTRATORS IN CERTAIN CASES. I 1597. Executor to complete contracts for sale of real estate. § 1598. Petition for executor to make conveyance, and notice of hear- ing. § 1599. Interested parties may contest. 8 1600. Conveyances when ordered to be made. § 1601. Execution of conveyance and record thereof. § 1602. Rights of petitioner to enforce contract. I 1603. Effect of conveyance. § 1604. Effect of recording a copy of the decree. § 1605. Recording decree does not superse^3e power of court to enforce It. § 1606. "Where party to whom conveyance to be made Is dead. § 1607. Decree may direct possession to be surrendered. § 1597. Executor to complete contracts for sale of real estate. When a person who is bound by contract in writ- ing to convey any real estate, or to transfer any personal property, dies before malting conveyance or transfer, and in all cases when such decedent, if living might be com- pelled to make such conveyance or transfer, the court, having Jurisdiction of the probate proceedings of the es- tate of such decedent, may make a decree authorizing and directing the executor or administrator of such deceased person to convey or transfer such real estate or personal property to the person entitled thereto. En. March 11, 1872. Am'd. 1880, 9£f; 1905, 76. Cal. Rep. Cit. 49, 471; 49, 472; 58, 416; 64, 444; 74, 284; 91, 416; 137, 478; 141, 850; 141, 425; 147, 458. Prob. Act, sec. 205. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1598. Petition for executor to make conveyance, and notice of hearing. On the presentation of a verified peti- tion by any person claiming to be entitled to such coavey- ance or transfer from an executor or administrator of such deceased person, setting forth the facts. Including a copy of the contract, upon which the claim is predicated, the court, or a judge thereof, must appoint a time and place for hearing the petition, and must order notices thereof to be published at least four successive weeks before such hearing, in such newspaper of general circulation pub- lished in the county in which the court Is held, as the court may designate. En. March 11, 1872. Am'd. 1880, 99; 1905, 76. 5§ 1599-1601 CONVETANCE. 104 Cal. Rep. Cit. C4, 445; 91, 416; 124, 247; 124, 253; 124, 254; 141, 350; 141, 425; 147, 458. Prob. Act, sec. 206. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Verification of pleadings: Ante, sec. 446. Publication of notice: Post, sec. 1706. Petition: Ante, sec. 1518. § 1599. Interested parties may contest. At the time and place appointed for the hearing, or at such other time to which the same may be posti)oned, upon satisfactory proof by affidavit or otherwise, of the due publication of the no- tice, the court shall proceed to hear the saiti petition, and all persons interested in the estate may appear and contest such petition, by filing their objections in writing, and the court may examine, on oath, the petitioner and all who may be produced before him for that purpose. En. March 11, 1872. Am'd. 1905, 77. CJal. Rep. Cit 147, 458. Prob. Act, see. 207. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 646. § 1600. Conveyances, when ordered to be nnade. If, af- ter a full hearing upon the petition, and objections, if any there be, and examination of the facts and circumstances of the claim, the court is satisfied that the petitioner Is entitled to a conveyance of the real estate, or a transfer of the personal property, described in the petition, a decree, authorizing and directing the executor or administrator to execute a conveyance or transfer thereof to the petitioner, must be made and entered on the minutes of the court En. March 11, 1872. Am'd. 1906, 77. Cal. Rep. Cit 91, 416; 147, 458. Prob. Act, sec. 208. En. April 22, 1850. Rep. 1851. 489. En. 1851, 448. Am'd. 1861, 646. § 1601. Execution of conveyance and the recording of the order therefor. The executor or administrator must execute the couYeyance or transfer according to the direc- tions contained in the decree, which decree shall be prima facie evidence of the correctness of the proceedings, and of the authority of the executor or a-dministrator to make the conveyance or transfer. If the transaction relate to real property, a certified copy of the decree must be re- corded with the deed in the oflBce of the recorder of the 1»5 CONVEYANCE. 5§ 1802-1633 eounty in which the land conveyed is situated. En. March 11, 1872. Am'd. 1873-4, 371; 1905, 77. Cal. Rep. Cit. 147, 458. Prob. Act, sec. 209. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 646. § 16C2. Rights of petitioner to enforce the contract. If, upon the hearing, as hereinbefore provided, the right of the petitioner to have a specific performance of the con- tract is found to be doubtful, the court must dismiss the petition without prejudice to the rights of the petitioner, who may, at any time within six months after such dis- missal, proceed by action to enforce a specific performance thereof. En. March 11, 1872. Am'd. 1880, 99; 190i, 77. Cal. Rep. Cit. 61, 163; 141, 350; 141, 425; 147, 459. Prob. Act, sec. 210. En. April 22, 1850. Rep. 1861, 489. En. 1851, 448. Am'd. 1861, 646. § 1603. Effect of conveyance. Every conveyance or transfer made in pursuance of a decree as provided In this chapter, shall pass title to the property contracted for, as fully as if the contracting party himself was still living, and executed the conveyance or transfer. En. March 11, 1872. Am'd. 1880, 99; 1905, 77. Prob. Act, sec. 211. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Conveyances by executor, etc.: Ante, sec. 1555. § 1604. Effect of recording a copy of the decree. A copy of the decree for a conveyance or transfer as provided in this chapter, duly certified and recorded in the office of the recorder of the county in which the property is situated, gives the person entitled to the conveyance or transfer a right to the possession of the property contracted for, and to hold the same according to the terms of the intended conveyance or transfer, in like manner as if the same had been conveyed or transferred in pursuance of the decree. En. March 11, 1872. Am'd. 1880, 99; 1905, 77. Prob. Act, sec. 212. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1605. Recording of the decree does not supersede power of court to enforce it. The recording of any de- cree, as provided in the preceding section, shall not prevent the court making the decree from enforcing the same by other process. En. March 11, 1872. Am'd. 1905, 77. Prob. Act, sec. 213. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. 5§ 1606, 1607 ACCOUNTS. 608 § 1606. Where party to whom conveyance to be made is dead. If the person entitled to the conveyance or transfer dies before the commencement of the proceed- ings therefor under this chapter, or before the completion of the conveyance or transfer, any person entitled to suc- ceed to his rights in the contract, or the executor or admin- istrator of such decedent, may, for the benefit of the per- son so entitled, commence such proceedings or prosecute any already commenced, and the conveyance or transfpr must be so made as to. vest the property in the person or persons entitled thereto, or in the executor or adminis- trator, for their benefit. En. March 11, 1872. Am'd. 1905, 77. Cal. Rep. Cit. 91, 416. Prob. Act, sec. 214. En, April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1607. Decree may direct possession to be surrendered. The decree provided for in this chapter may direct the pos- session of the property therein described to be surrendered to the person entitled thereto upon his producing the deed or transfer and a certified copy of the decree, when, by the terms of the contract, possession is to be surrendered. En. March 11, 1872. Am'd. 1905, 78. Cal. Rep. Cit. 68, 416; 64, 444; 91, 416. CHAPTER X, OF ACCOUNTS RENDERED BY EXECUTORS AND ADMINISTRA- TORS AND OF THE PAYMENT OF DEBTS. Article I. Liabilities and Componsatjon of Executors and Administra- tors, §§ 1612-1618. II. Accounting and Settlements by Executors and Administra- tors, §§ 1622-1640. III. The payment of Debts of the Estate, §§ 1643-1653. ARTICLE I. LIABILITIES AND COMPENSATION OF EXECUTORS AND AD MINISTRATORS. § 1612. When executor or administrator personally liable. § 1613. Executor to be charged with all estate, etc. g 1614. Not to profit or lose by estate. § 1615. Uncollected debts without fault. § 1616. Compensation of the executor and Administrator. Comcensa- tion of attorney. § 1617. Not to purchase claims against the estate. § 1618. Executor's and administra,tor's commissions. 5 1619. Allowed fees for attorneys. Gen Cit. to Art— Cal. Rep. Cit. 131, 427. 607 ACCOUNTS. §§ 1612-1615 § 1612. When executor or administrator personally lia- ble. No executor or administrator is cliargeable upon any- special promise to answer damages or to pay the debts of the testator or intestate out of his own estate, unless the agreement for that purpose, or some memorandum or note thereof, is in writing and signed by such executor or administrator, or by some other person by him thereunto specially authorized. En. March 11, 1872. Gal. Rep. Cit. 101, 385; 117, 593. Prob. Act, sec. 215. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Compare: Post, sec. 1973, subd. 2. § 1613. Executor to be charged with all estate, etc. Every executor and administrator is chargeable in his account with the whole of the estate of the decedent which m.ay come into his possession, at the value of the appraisement contained in the inventory, except as pro- vided in the following sections, and with all the interest, profit and income of the estate. En. March 11, 1872. Cal. Rep. Cit. 70, 71; 74, 203; 74, 213; 74, 540; 92, 170; 92, 174; 119, 584; 131, 36; 145, 233; 145, 349; 146, 141. Prob. Act, sec. 216. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 43, 549; 43, 550. § 1614. Not to profit or lose by estate. He shall not make profit by of the increase, nor suffer loss by the de- crease or destruction, without his fault, of any part of the estate. He must account for the excess when he sells any part of the estate for more than the appraisement, and if any is sold for less than the appraisement, he is not responsible for the loss if the sale has been justly made. En. March 11, 1872. Cal. Rep. Cit. 74, 540; 119, 584; 146, 141. Prob. Act, sec. 217. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 26, 429; 44, 588. Becoming purchaser: Ante, sec. 1576. § 1615. Uncollected debts without fault. No executor oi administrator is accountable for any debts due to the decedent, if it appears that they remain uncollected without his fault. En. March 11, 1872. Cal. Rep. Cit. 74, 203; 109, 423; 123, 104; 131, 36; 133, 615; 140, 398; 145, 233. Prob. Act, sec. 218. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. §§ 1616-161S ACCOUNTS. ' SUg § 1616. Compensation of executor and administrator; compensation of attorney; appeal from order of court. He shall be allowed all necessary expenses in the care, man- agement, and settlement of the estate, and for his services such fees as provided in this chapter; but when the de- cedent, by his will, makes some other provision for the com- pensation of his executor, that shall be a full compensa- tion for his services, unless, by a written instrument, tiled in the court, he renounces nil claim for compensation pro- vided by in the will. Any attorney who has rendered ser- vices to an executor or administrator may at any time during the administration, and upon such notice to the other parties interested in the estate as the court shall by ord^r require, apply to the court for an allowance to himself of compensation therefor, and the court shall on the hearing of such application make an order requiring the executor or administrator to pay to such attorney out of the estate such compensation as to the court shall seem proper. Any payment made by an executor or administrator in conform- ity with such order shall be allowed by the court in his ac- count. Any attorney making such application to the court for compensation and all other persons interested In the estate may appeal from any order made by the court fixing the amount of such compensation. En. March 11, 187-. Am'd. 1873-4, 414; 1880, 99; 1905, 776. Cal. Rep. Cit. 65, 379; 88, 4; 101, 385; 108, 4.58; 112, 453; 120, 454; 121, 191; 123, 660; 123, 663; 125, 196; 125, 197; 138, 370; 143, 144. Prob. Act, sec. 219. En. April 22, 1850. Rep. 1851, 469. En. 1851, 448. Cal. Rep. Cit. 38, 87; 43, 551. Compensation for services — commissions, where no pro- vision in will, etc.: Post, sec. 1618. Costs: Ante, sec. 1509. § 1617. Not to purchase claims against the estate. No administrator or executor shall purchase any clahn against the estate he represents; and if he pays any claim for less than its nominal value, he is only entitled to charge in his account the amount he actually paid. En. March 11, 1872. Cal. Rep. Cit. 93, 118; 93, 120; 146, 194. Prob. Act, sec. 220. En. April 22, 1850. Rep. 1851. 489. En. 1851, 448. Cal. Rep. Cit. 9, 636; 21, 32. 609 ACCOUNTS. §§ 161S, 161S Purchasing property of estate: Ante, sec. 1576; fraudu- lently selling realty: Ante, sec. 1572. § 1618. Executors and administrators, commissions al- lowed to. When no compensation is provided by the will, or the executor renounces all claim thereto, he must De allowed commissions upon the amount of estate accounted for by him, as follows: for the first thousand dollars, at the rate of seven per cent; for the next nine thousand dol lars, at the rate of four per cent; for the next ten thousand dollars, at the rate of three per cent; for the next thirty thousand dollars, at the rate of two per cent; for the next fifty thousand dollars, at the rate of one per cent; and for all above one hundred thousand dollars, at the rate of one- half of one per cent. The same commissions shall be allowed to administrators. In all cases, such further al- lowance may be made as the court may deem just and reasonable for any extraordinary service, but the total amount of such extra allowance must not exceed one-half the amount of commissions allowed by this section. Where the property of the estate is distributed in kind, and involves no labor beyond the custody and distribution of the same, the commission shall be computed on all the es- tate above the value of twenty thousand dollars, at one- half of the rates fixed in this section. Public administrators shall receive the same compensation and allowances as ar.^ allowed in this title to other administrators. All contracts between an executor or administrator and an heir, devisee, or legatee, for a higher compensation than that allowed by this section, shall be void. En. March 11, 1872. Am d. 1873-4, 415; 1880, 100; 1881, 36; 1905, 727. Cal. Rep. Cit. 65, 379; 65, 381; 70, 71; 96, 527; 108, 456; 110, 566; 119, 584; 121, 191; 123, 103; 124, 48; 125, 197; 127, 188; 1S3, 463; 143, 508; 144, 556; 144, 557; 146, 596. Prob. Act, sec. 221. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 646. Cal. Rep. Cit. 30, 113; 43, 550; 46, 572. § 1619. Allowed fees for attorneys; extraordinaiy ser- vice. Executors and administrators shall be allowed for fees of their attorneys for conducting the ordinary probate proceedings, the same amounts as are allowed by the last section as compensation for executors and administrators for their own services. In all cases, such further allow- Code Civil Proc— 39. { 1622 ACCOUNTS. «1« ance may be made as the court may deem just and reason- able for any extraordinary service, such as sales or mort- gages of real estate, contested or litigated claims against the estate, litigation in regard to the property of the es- tate, and such other litigation as may be necessary for the executor or administrator to prosecute or defend. En. Stats. 1905, 727. ARTICLE II. ACCOUNTING AND SETTLEMENTS BY EXECUTORS AND ADMIN - ISTR.\TORS. § 1€22. To render exhibit of receipts and dlsbursementa, and claims al- lowed. § 1623. Citation to account at third term. § 1624. Petition for citation to render final or other accoont. § 1625. Citation to account on application. § 1626. Objections to account, who may file. § 1G27. Attachment for not obeying citation. § 16::8. To render accounts at expiration of term. § 1629. Executor to account after his authority revoked. § 1630. Revoking authority of executor, when. § 1631. To produce and file vouchers, which remain In court. § 1632. Vouchers for Items less than twenty dollars, when accepted. § 1633. Day of settlement to be appointed, and must give notice there- of. Hearing. § 1634. When settlement is final, notice must so state. § 1635. Interested party may file exceptions to account. § 1636. All matters may be contested by the heirs. Hearing. § 1637. Settlement of accounts to be conclusive, when and when not. § 1638. Proof of notice of settlement of accounts. § 1639. In case of death, personal representative to present account. § 1640. Moneys invested by order of court. § 1622. To render exhibit of receipts and disbursements and claims allowed. Six months after his appointment and at any time when required by the court, either upon its own motion or upon the application of any person in- terested )n the estate, the executor or administrator must render, for the information of the court, an exhibit under oath, showing the amount of money received and expended by him, the amount of all claims presented against the estate, and the names of the claimants, and all other matters necessary to show the condition of its affairs. En. March 11, 1872. Am'd. 1880, 100. Cal. Rep. Cit. 109, 423; 112, 81; 127, 188; 131, 416; 146, 594. Prob. Act, sec. 222. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 9. 636. m ACCOUNTS. §§ 1623-1626 § 1623. Citation to account at third term. If the ex- ecutor or administrator fails to render an exhibit for six months after his appointment, the court, or a judge there- of, must cause a citation to be issued requiring him to ap- pear and render it En. March 11, 1872. Am'd. 1880, 100. Cal. Rep. Cit. 72, 24; 112, 179; 116, 451. Prob. Act, sec. 223. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Citation: Post, sees. 1707-1711. § 1624. Petition for citation to render final or other account. Any person interested in the estate may, at any time before the final settlement of accounts, present his petition to the court, or a judge thereof, praying that the executor or admmistrator be required to appear and render such exhibit, setting forth the facts showing that it is necessary and proper that such an exhibit should be made. En. March 11, 1872. Am'd. 1880, 100. Cal. Rep. Cit. 80, 97; 119, 241. Subd. 5—112, 441. Prob. Act, sec. 224. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1625. Citation to account on application. If the court or a judge thereof, is satisfied, either from the oath of the applicant or from any other testimony offered, that the facts alleged are true, and considers the showing of the applicant sufficient, he must direct a citation to be issued to the executor or administrator, requiring him to appear, at some day to be named in the citation, and render an exhibit as prayed for. En. March 11, 1872. Am'd. 1880, 100. Cal. Rep. Cit. 112, 81; 116, 451. Prob. Act, sec. 225. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1626. Objections to account, who may file. When an exhibit is rendered by an executor or administrator, any person interested may appear, and by objections in writing, contest any account or statement therein con- tained. The court may examine the executor or adminis- trator, and if he has been guilty of neglect, or has wasted, embezzled, or mismanaged the estate, his letters must be revoked. En. March 11, 1872. Cal. Rep. Cit. 123, 104. Prob. Act, sec. 226. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 26, 57. §§ 1627-1629 ACCOUNTS. 812 Any person interested: Post, sec. 1635. Revocation for misconduct: Ante, sees. 1436 et seq. § 1627. Attachment for not obeying citation. If any executor or administrator neglects or refuses to appear and render an exhibit, after having been duly cited, an at- tachment may be issued against him, and such exhibit onforced, or his letters may be revoked, in the discretion f>f the court. En. March 11, 1872. Prob. Act, sec. 227. En. April 22, 1850. Rep. 1851, 489. ri:n. 1851, 448. Cal. Rep. Cit. 26, 429. Contempt: Ante, sees. 1209 et seq. § 1628. To render accounts at expiration of term. Within thirty days after the expiration of the time men- tioned in the notice to creditors within which claims must be exhibited, every executor or administrator must render a full account and report of his administration. If he fails to present his account, the court or judge must compel the rendering of the account by attachments, and any per- son interested in the estate may apply for and obtain an attachment; but no attachment must issue unless a cita- tion has been first issued, served, and returned, requiring the executor or administrator to appear and show cause why an attachment should not issue. Every account must exhibit all debts which have been presented and allowed during the period embraced in the account. En. March 11, 1872. Am'd. 1875-6, 104. Cal. Rep. Cit. 72, 24; 109, 423; 112, 81; 133, 449; 143, 481; 146, 194. Prob. Act, sec. 228. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 647. Cal. Rep. Cit. 9, 636; 26, 429; 30, 110; 55, 582. Account of administration — Final: Post, sees. 1647, 1652. Judge may receive at chambers: Ante, sec. 166. § 1629. Executor to account after his authority re- volayment, has any right to call upon the creditors who have been paid, or upon the heirs, devisees, or legatees, to con- tribute to the payment of his claim; but if the executor or administrator has failed to give the notice to the creditors, as prescribed in section fourteen hundred and ninety-one, such creditor may recover on the bond of the executor or administrator the amount of his claim, or such part there- of as he would have been entitled to, had it been allowed. This section shall not apply to any creditor whose claim was not due ten months before the day of settlement, or whose claim was contingent, and did not become absolute ten months before such day. En. March 11, 1872. Cal. Rep. Cit. 54, 370; 58, 515; 96, 475; 96, 476; 123, 100. Prob. Act, sec. 246. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 55, 582. § 1651. Order for payment of legacies and extension of time. If the whole of the debts have been paid by the first distribution, the court must direct the payment of legacies and the distribution of the estate among the heirs, legatees, or other persons entitled, as provided in the next chapter; but if there be debts remaining unpaid, or if, for other reasons, the estate be not in a proper condition to 621 ACCOtJNTS. §§ 1652, 1653 be closed, the court must give such extension of time as may be reasonable, for a final settlement of the estate. En. March 11, 1872. Cal. Rep. Cit. 57, 459; 58, 515; 96, 476; 98, 605; 109, 423. Prob. Act, sec. 247. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 648. Cal. Rep. Cit. 31, 111; 55, 582. § 1652, Final account, when to be made. At the time designated in the last section, or sooner, if within that time all the property of the estate has been sold, or there are sufficient funds in his hands for the payment of all the debts due by the estate, and the estate be in a proper con- dition to be closed, the executor or administrator must render a final account, and pray a settlement of his admin- istration. En. March 11, 1872. Cal. Rep. Cit. 109, 423; 122, 45. Prob. Act, sec. 248. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'H. 1861, 648. Cal. Rep. Cit. 30, 248. Settlement of accounts: Ante, sec. 1628. § 1653. Neglect to render final account, how treated. If he neglects to render his account, the same proceedings may be had as prescribed in this chapter in regard to the first account to be rendered by him; and all the provisions of this chapter relative to the last-mentioned account, and the notice and settlement thereof, apply to his account presented for final settlement. En. March 11, 1872. Prob. Act, sec. 249. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 9, 636; 30, 111. Proceedings to enforce account: Ante, sees. 1628-1630. §§ 1858, 1659 PARTITION AND SETTLEMENT. CHAPTER XI. OF THE PARTITION, DISTUIBUTION, AND FINAL SETTLEMENT OF ESTATES. Article I. Paitial Distribution Prior to Final Settlenient, §§ 1G68-Ifi63. II. Distribution on Final Settlement, §§ 1661-1670. III. Distribution and Partition, §§ 1G75-16S6. .IV. Agents for ALsent Interested Parties. Discliarge of Execu- tor or Adnr>inistrator, §§ 1601-169S. V. Accounts of Trustees. Distribution, §§ 1699-170314. ARTICLE I. PARTIAL DISTRIBUTION PRIOR TO FINAL SETTLEMENT. § 1G5S. Payment of legacies upon giving bonds. § 1653. Notice of application for legacies. § 1660. Executor or other peison may resist application. § 16G1. Decree prayed for to require bor/J, wliich must be given. May order wbole or part of siiare to be delivered. Where partition necessary, how made. Costs. § 1662. Order for payment of bond, and suit thereon. § 1663. Any heir, devisee, or legatee may petition the court for distri- bution of net proceeds. Order of court. Bond. § 1658. Payment of legacies upon giving bonds. At any time after the lapse of four months from the issuing of letters testamentary or of administration, any heir, dev- isee, or legatee, may present his petition to the court for the legacy or share of the estate to which he is entitled, to be given to him upon his giving bonds, with security, for the payment of his proportion of the debts of the es- tate. En. March 11, 1872. Cal. Rep. Cit. 57, 459; 63, 107; 65, 380; 74, 312; 81, 437; 105. 371; 107, 594; 110, 561; 115, G39; 119, 408; 121, 127; 121, 393; 121, 394; 122, 530; 122, 531; 132, 564; 133, 658. Prob. Act, sec. 250. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 648. Cal. Rep. Cit. 14, 112; 31, 618; 31, 619. Payment of legacies — Order of appropriation for: Civ. Code, sec. 1360. Proportion of the debts — For which legatee, etc., liable: Civ. Code, sec. 1377; see ante, sec. 1650. Partial distribution: Post, sec. 1661. § 1659. Notice of application for legacies. Notice of the application must be given to the executor or administrator, S23 PARTITION A>rD SETTLEMENT. §§ 1C60, 1661 personally, and to all persons interested in the estate, in the same manner that notice is required to be given of the settlement of the account of an executor or administrator. En. March 11, 1872. Cal. Rep. Cit. 81, 437; 110, 561. Prob. Act, sec. 251. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 648. Notice of settlement of account: Ante, sec. 1633. § 1660. Executor or other person may resist application. The executor or administrator, or any person interested in the estate, may appear at the time named and resist the application, or any other heir, devisee, or legatee may make a similar application for himself. En. March 11, 1872. Cal. Rep. Cit. 63, 107; 110, 561. Prob. Act, sec. 252. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Any person interested: Ante, sec. 1635. § 1661. Decree prayed for to require bond, whicli must be given. May order whole or part of share to be deliv- ered. Where partition necessary, how made. Costs. If, at the hearing, it appear that the estate is but little in- debted, and that the share of the party applying may be allowed to him without loss to the creditors of the estate, the court must make an order in conformity with the prayer of applicant, requiring; 1. Each heir, legatee, or devisee, obtaining such order, before receiving his share, or any portion thereof, to exe- cute and deliver to the executor or administrator a bond, in such sum as shall be designated by the court, or a judge thereof, v/ith sureties to be approved by the judge, payable to the executor or administrator, and conditioned for the payment, whenever required, of his proportion of the debts due from the estate, not exceeding the value or amount of the legacy or portion of the estate to which he is entitled. 2. The executor or administrator to deliver to the heir, legatee, or devisee, the whole portion of the estate to which he may be entitled, or only a part thereof, designat- ing it. If, in the execution of the order, a partition Is necessary between two or more of the parties ihterested, it §§ 1662, 1663 PARTITION AND SKTTLEMENT. 624 must be made in the manner hereinafter prescribed. The costs of these proceedings shall be paid by the applicant, or if there be more than one, shall be apportioned equally amongst them. En. March 11, 1872. Am'd. 1880, 102. Cal. Rep. Cit. 58, 515; 63, 107; 65. 379; 65, 380; 105, 371; 121, 127; 121, 394; 145, 466; 147, 255. Prob. Act, sec. 253. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 14, 112; 20, 628. Prob. Act, sec. 254. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 20, 628. Prob. Act, sec. 255. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Prob. Act, sec. 256. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Order — Not made if any taxes unpaid: Post, sec. 16G9; recording: Post, sec. 1719. Partition — Manner hereinafter prescribed: Post, sees. 1675 et seq. § 1662. Order for payment of bond, and suit thereon. When any bond has been executed and delivered under the provisions of the preceding section, and it is necessary for the settlement of the estate to require the payment of any part of the money thereby secured, the executor or administrator must petition the court for an order requir- ing the payment, and have a citation issued and served on the party bound, requiring him to appear and show cause why the order should not be made. At the hearing, the court, if satisfied of the necessity of such payment, must make an order accordingly, designating the amount and giving a time within which it must be paid. If the money is not paid within the time allowed, an action may be maintained by the executor or administrator on the bond. En. March 11, 1872. Prob. Act, sec. 257. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit 31, 618; 31, 619. § 1663. Any heir, devisee, or legatee may petition the court for distribution of net proceeds. Order of court. Bond, At any time after the lapse of one year from the fiS PARTITION AND SETTLEMENT. J 1663 issuance of letters testamentary, or of administration, any heir, devisee^ or legatee may present his or her petition to the court ^'or the distribution of the net proceeds of the share of the said estate to which he or she will be entitled. Notice of the application must be given, as required by sec- tion sixteen hundred and fifty-nine. The executor or ad- ministrator, or any other person interested in lae estate, may appear at the time named and resist the application, or any other heir, devisee, or legatee may make a similar appli- cation for himself. If at the hearing it appear that the es- tate is but little indebted, and that the share of the party applying may be allowed to him without loss to the cred- itors of the e.state, the court must make an order in con- formity with the prayer of the applicant, requiring: 1. Each heir, legatee, or devisee, obtaining such order, before receiving his share, or any portion thereof, to execute and deliver to the executor or administrator a bond, in such sum as shall be designated by the court, or a judge thereof, with sureties to be approved by the judge, payable to the executor or administrator, and conditioned for the payment, whenever required, of his proportion of the debts due from the estate, not exceeding the amount or portion of the proceeds of the estate which he has re- ceived; provided, that where the time for filing or present- ing claims has expired, and all claims that have been al- lowed have been paid, or are secured by mortgage upon real estate sufficient to pay them, and the court is satisfied that no injury can result to the estate, the court may dis- pense with the bond. 2. The executor or administrator to deliver to the heir, legatee, or devisee the proceeds of the estate to which he may be entitled, or only a part thereof, designating it. If, in the opinion of the court, it be necessary, in order to ascertain the proceeds that any or all of the heirs, legatees, or devisees may be entitled [to] that the interest of any heir, legatee, or devisee in one or more pieces or parcels of property of the estate shall be determined or ascertained, the court may suspend proceedings and direct the petitioner or petitioners to take proceedings under section sixteen hundred and sixty-four of this code to ascertain the interest the petitioner or petitioners will have under the will in any piece or parcel of property. The order mnst describe the property in relation to which proceedings are to be taken. Whenever any bond has been executed and deliv^ed, pro- Code CivU Proo.— 49. S 1664 PARTITION AND SETTUilMENT. Ol ceedings upon any such bond may be taken under section sixteen hundred and sixty-two. The cost of these proceed- ings shall be paid by the applicant, or if there be more than one, shall be apportioned equally between them. En. Stats. 1889. 92. Cal. Rep. Cit. 105, 371; 109, 423; 115, 639; 121, 127; 121, 131; 121, 392; 121, 394; 126, 251; 126, 252. ARTICLE II. DISTRIBUTION ON FINAL. SEnTLEMEJSTT. § 1664. Procecdinss In the nature of an action to determine heirship. § 1665. Distribution of e&late, how made and to whom. § 1606. What the decree must contain, and is final. § 1667. Proceedings for distribution of estates of deceased persons. g 166S. Decree to be made only after notice. § 1669. No distribution made till taxes are paid. § 1670. Continuatioa of administi-ation. § 1664. Proceedings in the nature of an action to deter- mine lieirship. In all estates now being administered, or that may hereafter be administered, any person claiming to be heir to the deceased, or entitled to distribution in whole or in any part of such estate, may, at any time after the expiration of one year from the issuing of letters testa- mentary or of administration upon such estate, file a peti- tion in the matter of such estate, praying the court to ascertain and declare the rights of all persons to said estate and all interests therein, and to whom distribution thereof should be made. Upon the filing of such petition, the court shall make an order directing service of notice to all persons interested in said estate to appear and show cause, on a day to be therein named, not less than sixty days nor over four months from the date of the making of such order, in which notice shall be set forth the name of the deceased, the name of the executor or administrator of said estate, the names of all persons who may have ap- peared claiming any interest in said estate in the course of the administration of the same, up to the time of the mak- ing of said order, and such other persons as the court may direct, and also a description of the real estate whereof B27 PARTITION AND SETTLEMENT. i 1664 said deceased died seised or possessed, so far as Itnown, described with certainty to a common intent, and requiring all said persons and all persons named or not named, having or claiming any interest in the estate of said deceased, at the time and place in said order specified, to appear and exhibit, as hereinafter provided, their respective claims of heirship, ownership, or interest In said estate, to said court, which notice shall be served in the same manner as a sum- mons in a civil action, upon proof of which service, by affidavit or otherwise, to the satisfaction of the court, the court shall thereupon acquire jurisdiction to ascertain and determine the heirship, ownership, and interest of all parties In and to the property of said deceased, and such determination shall be final and conclusive in the adminis- tration of said estate and the title and ownership of said property. The court shall enter an order or decree estab- lishing proof of the service of such notice. All persons appearing within the time limited, as aforesaid, shall file their written appearance In person or through their au- thorized attorney, such attorney filing at the same time written evidence of his authority to so appear, entry of which appearance shall be made In the minutes of the court and In the register of proceedings of said estate. And the court shall, after the expiration of the time limited for appearing as aforesaid, enter an order adjudging the default of all persons for not appearing as aforesaid, who shall not have appeared as aforesaid. At any time within twenty days after the date of the order or decree of the court establishing proof of the service of such notice, any of such persons so appearing may file his complaint In the matter of the estate, setting forth the facts constituting his claim of heirship, ownership, or interest in said estate, with such reasonable particularity as the court may require, and serve a copy of the same upon each of the parties or attor- neys who shall have entered their written appearance as aforesaid, if such parties or such attorneys reside within the county; and in case any of them do not reside within the county, then service of such copy of said complaint shall be made upon the clerk of said court for them, and the clerk shall forthwith mail the same to the address of such party or attorney as may have left with said clerk his postofflce address. Such parties are allowed twenty days after the service of the complaint, as aforesaid, within which to plead thereto, and thereafter such proceedings shall be had upon such complaint as in this code provided § 1664 PARTITION AND SETTLEMENT. (28 In case of an ordinary civil action; and the Issues of law and of fact arising in the proceeding shall be disposed of In like manner as issues of law and fact are herein pro- vided to be disposed of in civil actions, with a like right to a motion for a new trial and appeal to the supreme court; and the provisions In this code contained regulating the mode of procedure for the trial of civil actions, the motion for a new trial of civil actions, statments on motion for a new trial, bills of exception, and statements on appeal, as also in regard to undertakings on appeal, and the mode of taking and perfecting appeals, and the time within which such appeals shall be taken, shall be applicable thereto; provided, however, that all appeals herein must be taken within sixty days from the date of the entry of the judg- ment or the order complained of. The party filing the petition as aforesaid, if he file a complaint, and If not, the party first filing such complaint, shall, in all subsequent proceedings, be treated as the plaintiff therein, and all other parties so appearing shall be treated as the defend- ants In said proceedings, and all such defendants shall set forth In their respective answers the facts constituting their claim of heirship, ownership, or interest in said estate, with such particularity as the court may require, and serve a copy thereof on the plaintiff. Evidence In support of all Issues may be taken orally or by deposition. In the same mannner as provided in civil actions. Notice of the taking of such depositions shall be served only upon the parties or the attorneys of the parties so appearing In said proceed- ing. The court shall enter a default of all persons falling to appear, or plead, or prosecute, or defend their rights, as aforesaid; and upon the trial of the issues arising upon the pleadings in such proceeding, the court shall determine the heirship to said deceased, the ownership of his estate, and the Interest of each respective claimant thereto or therein, and persons entitled to distribution thereof, and the final determination of the court thereupon shall be final and conclusive in the distribution of said estate, and In regard to the title to all the property of the estate of said deceased. The cost of the proceedings under this section shall be apportioned in the discretion of the court. In any proceeding under this section, the court may appoint an attorney for any minor mentioned in said proceedings not having a guardian. Nothing in this section contained shall be construed to exclude the right upon final distribution of auy estate to contest the question of heirship, title, or In- «2» PARTITION AND SETTLEMENT. | 1665 terest In the estate so distributed, where the same shall not have been determined under the provisions of this section; but where such questions shall have been litigated under the provisions of this section, the determination tliereof, as herein provided shall be conclusive in the distribution of said estate. En. Stats. 1885, 208. Cal. Rep. Clt. 78, 281; 73, 296; 73, 297; 78, 110; 78, 111 78, 112; 78, 118; 81, 415; 81, 438; 81, 439; 81, 572 88, 378; 88, 379; 88, 381; 89, 32; 93, 460; 93, 461 93, 462; 93, 468; 93, 464; 96, 113; 96, 114; 96, 557 102, 256; 102, 258; 102, 259; 102, 262; 108, 125; 110 227; 110, 228; 110, 232; 110, 233; 112, 692; 112, 693 115, 641; 118, 668; 121, 72; 122, 530; 122, 532; 123, 168 124, 155; 127, 497; 127, 505; 127, 506; 129, 176; 133 492; 138, 493; 183, 494; 133, 495; 135, 674; 135, 677 187, 299; 137, 478; 141, 34; 141, 40; 141, 352; 141, 353 148, 489; 148, 490; 148, 491; 148, 492; 147, 83. Distribution not to be granted until taxes paid: Sea post, sec. 1669; Pol. Code, sec. 8752. § 1665. Distribution of estate, how made and to whom. Upon a final settlement of the accounts of the executor or administrator, or at any subsequent time, upon the application of the executor or administrator, or of any heir, legatee, or devisee, the court must proceed to dis- tribute the residue of the estate In the hands of the ex- ecutor or administrator, if any, among the persons who by law are entitled thereto; and if the decedent has left a surviving child, and the Issue of other children, and any of them, before the close of administration, have died while under aige and not having been married, no admin- istration on such deceased child's estate is necessary, but all the estate which such deceased child was entitled to by Inheritance must, without administration, be dis- tributed to the other heirs at law. A statement of any re- ceipts and disbursements of the executor or adminis- trator, since the rendition of his final accoimts, must be reported and filed at the time of making such distribu- tion, and a settlement thereof, together with an estimate of the expenses of closing the estate, must be made by the court and included In the order or decree; or the court or Judge may order notice of the settlement of such supplementary acoount, and refer the same as In other cases of the settlement of accounts. En. March 11, 1872. j§ 1CC6, 1667 PARTITION AND SETTLEMENT. 630 Cal. Rep. Cit. 51, 569; 52, 96; 54, 210; 57, 423; 57, 459 58, 114; 58, 518; 58, 575; 63, 523; 74, 515; 88, 379 93, 463; 107, 594; 116, 361; 119, 557; 120, 142; 122, 530 122, 531; 129, 175; 136, 419; 137, 356; 141, 371; 143, 197; 143, 202; 143, 204. Pmb. Act, sec. 258. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 649; 1866, 329. Cal. Rep. Cit. 20, 628. Notice of settlement of account: Ante, sec. 1633. Distribution of property of absentee: Post, sec. 1693. § 1666. What the decree must contain, and is final. In the order of decree, the court must name the persons and the proportions or parts to which each shall be entitled, and such persons may demand, sue for, and recover their respective shares from the executor or administrator, or any person having the same in possession. Such order or decree is conclusive as to the rights of heirs, legatees, or devisees, subject only to be reversed, set aside, or modi- fied on appeal. En. March 11, 1872. Cal. Rep. Cit. 54, 23; 54, 305; 58, 114; 63, 457; 64, 332; 74, 515; 74, 525; 74, 526; 82, 71; 100, 407; 102, 10; 102, 542; 112, 400; 110, 361; 119. 147; 119, 151; 119, 557; 119, 570; 121, 444; 122, 77; 122. 113; 122, 484; 131, 76; 137, 357; 141, 371; 143. 197; 143. 202; 143, 204; 144, 464; 144. 669. Prob. Act. sec. 259. En. April 22, 1850. Rep. 1851, 489. En. 1851. 448. Am'd. 1866, 766. Cal. Rep. Cit. 20. 628. Recording: Post, sec. 1719; taxes payable before: Post, sec. 1669. Subsequent issue of letters — On discovery of estate: Sec 1698. § 1667. Proceedings for distribution of estates of de- ceased persons. Upon application for distribution, after final settlement of the accounts of administration, if the decedent was a nonresident of this state, leaving a will which has been duly proved or allowed in the state of his residence, and an authenticated copy thereof has been ad- mitted to probate in this state, and it is necessary, in order that the estate, or any part thereof, may be distributed Sa PARTITION AKD SETTLEMENT. |5 1668, 1663 aecordintg to the will, that the estate in this state should be delivered to the executor or administrator in the state or place of his residence, the court may order such delivery to be made, and, if necessary, order a sale of the real es- tate, and a like delivery of the proceeds. The delivery, in accordance with, the order of the court, is a full dis- charge of the executor or administrator with the will an- nexed, in this state, in relation to all property embraced in such order, which, unless reversed on appeal, binds and concludes all parties in interest. Sales of real estate, ordered by virtue of this section, must be made in the same manner as other sales of real estate of decedents by order of the court. En. March 11, 1872. AmM. 1880, 102. Cal. Rep. Cit. 63, 456; 66, 435; 70, 407; 81, 521; 86, 553. Sales of real estate: Sees. 1536 et seq. § 1668. Decree to be made only after notice. The order or decree may be made on the petition of the executor or administrator, or of any person interested in the estate. Wlhen such petition is filed the clerk of the court must set the petition for hearing by the court and give notice there- of by causing notices to be posted in at least three public places in the county, setting forth the name of the estate, the executor or administrator, and the time appointed for the hearing of the petition. If, upon the hearing of the petition, the court, or a judge thereof, should deem the notice insufficient from any cause, he may order such further notice to be given as may seem to him proper. If partition be applied for, as provided in this chapter, the decree of distribution shall not devest the court of juris- diction to order partition, unless the estate is finally closed. En. March 11, 1872. Am'd. 1873-4, 373; 1893, 71. Cal. Rep. Cit. 58, 515. Prob. Act, sec. 260. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd, 1861, 649. § 1669. Distribution of estate not to be made until taxes are paid. Before any decree of distribution of an estate is made, the court must be satisfied, by the oath of the executor or administrator, or otherwise, that all state, county and municipal taxes, legally levied upon property of the estate, and any inheritance tax which is due and payable have been fully paid. En. March 11, 1872, Am'd. 1880, 102; 1905, 83. { 1670 PARTITION AND- SETTLEMENT. tXZ Cal. Rep Clt 58, 515; 71, 207; 133, 184. Similar provision: Pol. Code, sec. 3752. § 1670. Continuation of administration. In all casea where a decedent shall have left a will in and by the terms of which the testator shall have limited the time for ad- ministration upon an estate left by hLm, and the executor and all of the legatees or devisees named in the will shall file and present to the court a petition, in writing, repre- senting that it will be for the best interests of the estate and of the beneficiaries under the will to have the admin- istration upon the estate continued for a longer period of time than that designated in such will, and that it would be injurious to the estate and to such beneficiaries to have the administration brought to a close at the date therefor designated in the will, the court shall then set a day for the hearing of said petition; and notice thereof shall be served on all persons interested in the estate, in the same manner that summons in civil actions is served. Upon the day set for such hearing (or upon some other day to which the hearing may have been continued), the court shall proceed to hear proofs touching the representations made in such petition — and any person interested in the estate may also present counter-proofs in opposition to said application; and if, upon such hearing, it be made to appear to the court that the representations made by the petitioners in their said petition contained be true, the court may then, by its order and decree in that behalf, decree and direct that the administration upon the estate continue for and during such further period of time as in its judgment will best subserve the interests of the estate and of the beneficiaries under said will; provided, how- ever, that if, at any time during the period for which the administration ujKjn the estate shall have been thus con- tinued, the executor, or any one or more of the legatees or devisees, shall present to the court his or their petition, representing that it has become necessary for the best in- terests of the estate and of the beneficiaries under the will to have the administration upon the estate closed, the court shall then set a day for the hearing of said last- named petition; and notice thereof shall be given in the same manner, and the same proceedings be had thereupon, as shall have been given for and had upon the hearing of the petition asking for the continuation of such adminis- tration. And if, upon such hearing, it shall be made to ap- 633 PARTITION AND SETTLEMENT. § 1875 pear to the court that the representations made by such petitioners or petitioner (as the case may be) are true, the court shall then, by its order and decree in that be- half, decree an-d direct that the administration upon the estate be closed as soon thereafter as, under the circuim- stances, shall be practicable. En. Stats. 1891, 423, ARTICTLE in. DISTRIBUTION AND PARTITION, § 1675. Estate In common Commissioners. § 1676. Partition and notice thereof, and the time of filing petition. § 1677. Estate in different counties, how dlvidecl. I 1678. Partition may be made, although some of the heirs, etc, have parted with their Interest. § 1679. Shares to be set out by metes and bounds. § 1C80. Whole estate may be assigned to one, In certain cases. I 1681. Payments for eqnaUty of partiticai, by whom an-d how. § 1C82. Estate may be sold. § 1683. To give notice to all persons and guardians before partition. Duties of commissioners. § 1684. To make report, and partition to be recorded. § 1685. When commissioners to make partition are not necessary. § 1686. Advancements made to heirs. § 1675. Estate in common. Commissioners. When the estate, real or personal, assigned by the decree of distribu- tion to two or more heirs, devisees, or legatees, is in common and undivided, and the respective shares are not separated and distinguished, partition or distribution may be made by three disinterested persons, to be appointed commissioners for that purpose by the court, who must be duly sworn to the faithful discharge of. their duties, a cer- tified copy of the order of their appointment, and of the order or decree assigning and distributing the estate must be issued to them as their warrant, and their oath must be indorsed thereon. Upon consent of the parties, or when the court deems it proper and just, it is sufficient to ap- point one commissioner only, who has the same authority and is governed by the same rules as if three were ap- pointed. En. March 11, 1872. Am'd. 1880, 103. Cal. Rep. Cit 80, 496; 102, 8; 102, 10; 124, 432; 126, 483. §§ 1676-1678 PARTITION AND SETTLEMENT. 634 Prob. Act, sec. 261. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 649. § 1676. Partition and notice thereof, and the time of filing petition. Such partition may be ordered and had in the superior court on the petition of any person interested. But before commissioners are appointed, or partition or- dered by the court as directed in this chapter, notice thereof must be given to all persons interested who reside in this state, or to their guardians, and to the agents, at- torneys, or guardians, if any in this state, of such as re- side out of this state, either personally or by public notice, as the court may direct. The petition may be filed, attor- neys, guardians, and agents appointed, and notice given at any time before the order or decree of distribution, but the commissioners must not be appointed until the order or decree is made distributing the estate. En. March 11, 1872. Am'd. 1880, 103. Cal. Rep. Cit. 102, 10; 102, 11. Prob. Act, sec. 263. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 650. § 1677. Estate In different counties, how divided. If the real estate is in different counties, the court may, if deemed proper, appoint commissioners for all, or different commissioners for each county. The estate in each county must be divided separately among the heirs, devisees, or legatees, as if there was no other estate to be divided, but the commissioners first appointed must, unless other- wise directed by the court, make division of such real es- tate wherever situated within this state. En. March 11, 1872. Am'd. 1880, 103. Cal. Rep. Cit. 102, IL Prob. Act. sec. 262. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 649. § 1678. Partition may be made, although some of the heirs, etc., have parted with their interest. Partition or distribution of the real estate may be made as pro- vided in this chapter, although some of the original heirs, legatees, cr devisees may have conveyed their shares to other persons, and such shares must be assigned to the person holding the same, in the same manner as they otherwise would have been to such heirs, legatees, or devisees. En. March 11, 1872. C35 PARTITION AND SETTLEMENT. §§ 1679, 16S0 Cal. Rep. Cit. 58, 114; 74, 515; 74, 516; 82, 71; 92, 194; 102, 9; 116, 362; 125, 461; 125, 462; 137, 357; 137, 358; 141, 369; 141, 370; 141, 371. Prob. Act, sec. 264. En. April 22, 1850. Rep. 1851. 489. En. 1851, 448. Cal. Rep. Cit. 18, 98. § 1679. Shares to be set out by metes and bounds. When both distribution and partition are made, the several shares in the real and personal estate must be set out to each individual in proportion to his right, by metes and bounds, or description, so that the same can be easily dis- tinguished, unless two or more of the parties interested consent to have their shares set out so as to be held by them in common and undivided. En. March 11, 1872. Prob. Act. sec. 265. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1680. Whole estate may be assigned to one, in certain cases. When the real estate cannot be divided without prejudice or inconvenience to the owners, the court may assign the whole to one or more of the parties entitled to share therein, who will accept it, always preferring the males to the females, and among children, preferring the elder to the younger. The parties accepting the whole must pay to the other parties interested their just propor- tion of the true value thereof, or secure the same to their satisfaction, or in case of the minority of such party, then to the satisfaction of his guardian; and the true value of the estate must be ascertained and reported by the commis- sioners. When the commissioners appointed to make par- tition are of the opinion that the real estate cannot be divided without prejudice or inconvenience to the owners, they must so report to the court, and recommend that the whole be assigned as herein provided, and must find and report the true value of such real estate. On filing the report of the commissioners, and on making or securing the payment as before provided, the court, if it appears just and proper, must confirm the report, and thereupon the assignment is complete, and the title to the whole of such real estate vests in the person to whom the same is so assigned. En. March 11, 1872. Am'd. 1880, 103. Prob. Act, sec. 266. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 650; 1864, 371. 8§ 1681-1G83 PARTITION AND SETTLEMENT. 636 § 1681. Payments for equality of partition, by whom and how. When any tract of land or tenement is of greater value than any one's share in the estate to be divided, and cannot be divided without injury to the same, it may be set off by the commissioners appointed to make parti- tion to any of the parties who will accept it, giving prefer- ence as prescribed in the preceding section. The party accepting must pay or secure to the others such sums as the commissioners shall award to make the partition equal and the commissioners must make their award accord- ingly; but such partition must not be established by the court until the sums awarded are paid to the parties en- titled to the same, or secured to their satisfaction. En. March 11, 1872. Prob. Act, sec. 267. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1682. Estate may be sold. When it appears to the court, from the commissioners' report, that it cannot otherwise be fairly divided and should be sold, the court may order the sale of the whole or any part ot the estate, real or personal, by the executor or administrator, or by a eommissioner appointed for that purpose and the proceeds distributed. The sale must be conducted, reported, and confirmed, in the same manner and under the same re- (luirements provided in article four, chapter seven of this litle. En. March 11, 1872. Prob. Act, sec. 268. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 650. § 1683. To give notice to all persons and guardians be- fore partition. Duties of commissioners. Before any parti- tion is made or any estate divided, as provided in this chapter, notice must be given to all persons interested in the partition, their guardians, agents, or attorneys, by the commissioners, of the time and place when and where they shall proceed to make partition. The commissioners may take testimony, order surveys, and take such other steps as may be necessary to enable them to form a judgment upon the matters before them. Eru March 11. 1872- GaL E^n, Cit, l©?, ». Prob. Act, sec. 270. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. AmM. 1861, 65L 637 PARTITION AND SETTLEMENT. §§ 1684-1686 § 1684. To make report, and partition to be recorded. The commissioners must report their proceedings, and the partition agreed upon by them, to the court, in writing, and the court may, for sufficient reasons, set aside the report and commit the same to the same commissioners, or ap- point others; and when such report is finally confirmed, a certified copy of the judgment, or decree of partition made thereon, attested by the clerk under the seal of the court, must be recorded in the office of the recorder of the county where the lands lie. En. March 11, 1872. Am'd. 1880, 104. Prob. Act, sec. 271. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 651. I 1685. When commissioners to make partition are not necessary. When the court makes a judgment or decree assigning the residue of any estate to one or more persons entitled to the same, it is not necessary to appoint com- missioners to make partition or distribution thereof, unless the parties to whom the assignment is decreed, or some of them, request that such partition be ma-de. En. March 11, 1872. Am'd. 1880, 104. Prob. Act, sec. 272. En. April 22, 1850. Rep, 1851, 489. En. 1851, 448. § 1686. Advancements made to heirs. All questions as to advancements made, or alleged to have been made, by the decedent to his' heirs, may be heard and determined by the court, and must be specified in the decree assigning and distributing the estate; and the final judgment or de- cree of the court, or in case of appeal, of the supreme court, is binding on all parties interested in the estate. En. March 11, 1872. Am'd. 1880, 104. Cal. Rep. Cit. 58, 515; 80, 496; 102, 9. Prob. Act, sec. 275. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 651. §§ 1691, 1C92 PARTITION AND SKTTLEMENT. ■» ARTICLE IV. AGENTS FOR ABSENT INTERESTED PARTIES. DISCHARGE OF EXECUTOR OR ADMINISTRATOR. § 1691. Court may appoint agent to take possession for absentees. § 1692. Agent to give bond, and his compensation. § 1693. Unclaimed estate, how disposed of. § 1694. When real and personal property of absentee to be sold. § 1695. Liability of agent on his bond. § 1696. Certificate to claimant. § 1697. Final settlement, decree, and discbarge. § 1698. Discovery of property. § 1691. Court may appoint agent to take possession for absentees. When any estate is assigned or distributed by a judgment or decree of the court, as provided in this chap- ter, to any person residing out of, and having no agent in this state, and it is necessary that some person should be authorized to take possession and charge of the same for the benefit of such, absent person, the court may appoint an agent for that purpose and authorize him to talve charge of such estate, as well as to act for such absent person in the distribution; provided, that if such estate be in money when so assigned or distributed, the executor or adminis- trator of such estate may deposit the share of each person, and in the name of said person, as far as known, as desig- nated in said assignment or decree of distribution, with the county treasurer of the county in which said estate is being probated, and shall give a receipt for the same, and be liable upon his official bond therefor; and said receipt shall be deemed and received by the court or judge thereof as a voucher in favor of said executor or administrator, with the same force and effect as if executed by such assignee, legatee, or distributee; and said section as amended shall be applicable to any and all estates now pending in which a decree of final discharge has not been granted. En. March 11, 1872. Am'd, 1895, 75. • Cal. Rep. Cit. 58, 515. Prob. Act, sec. 274. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1692. Agent to give bond, and his compensation. The agent must execute a bond to the state of California, to be approved by the court, or a judge thereof, conditioned that 839 PARTITION AND SETTLEMENT. §§ 1693, 1U94 he shall faithfully manage and account for the estate. The court appointing such agent may allow a reasonable sum out of the profits of the estate for his services and ex- penses. En. March 11, 1872. Am'd. 1880, 104. Cal. Rep. Cit. 117, 646. Prob. Act, sec. 275. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1693. Unclaimed estate, how disposed of. When per- sonal property remains in the hands of the agent unclaimed for a year, and it appears to the court that it is for the benefit of those interested, it shall be cold under the order of the court, and the proceeds, after deducting the expenses of the sale allowed by the court, must be paid into the state treasury. When the payment is made, the agent must take from the treasury duplicate receipts, one of which he must file in the office of the controller and the other in the court En. March 11, 1872. Am'd. 1880, 104. Cal. Rep. Cit. 76, 652. Prob. Act, sec. 276. En. April 22. 1850. Rep. 1851, 489. En. 1851, 448. Unclaimed property: Ante, sees. 1269-1272. § 1694. When real and personal property of absentee to be sold. The agent must render the court appointing him, annually, an account showing: 1. The value and character of the property received by him, what portion thereof is still on hand, what sold, and for what. 2. The income derived therefrom. 3. The taxes and assessments imposed thereon, for what, and whether paid or unpaid. 4. Expenses incurred in the care, protection, and manage- ment thereof, and whether paid or unpaid. When filed, the court may examine witnesses and take proofs in regard to the account; and if satisfied from such accounts and proofs that it will be for the benefit and advantage of the persons interested therein, the court may, by order, direct a sale to be made of the whole or such parts of the real or personal property as shall appear to be proper, and the purchase money to be deposited in the state treasury. Eru March 11, 1872. Am'd. 1880, 105. §§ 16S5-1G98 PARTITION AND SETTLEMENT. MO § 1695. Liability of agent on his bond. The agent is liable on bis bond for the care and preservation of the estate while in his hands, and for the payment of the proceeds of the sale as required in the preceding sections, and may be sued thereon by any person interested. En. March 11, 1872. Prob. Act, sec. 277. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. 5 1696. Certificate to claimant. "UTien any person ap- pears and claims the money paid into the treasury, the court making the distribution must inquire into such claim, and being first satisfied of his right thereto, must grant him a certificate to that effect, under Its seal; and upon the presentation of the certificate to him, the controller must draw his warrant on the treasurer for the amount. En. March 11, 1872. Am'd. 1880, 105. Prob. Act, sec. 278. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1697. Final settlement, decree, and discharge. "WTien the estate has been fully administered, and it is shown by the executor or administrator, by the production of satis- factory vouchers, that he has paid all sums of money due from him, and delivered up, under the order of the court, all the property of the estate to the parties entitled, and, performed all the acts lawfully required of him, the court must make a judgment or decree discharging him from all liability to be incurred thereafter. En. March 11, 1872. Cal. Rep. Cit. 54, 305; 60, 259; 63, 475; 63, 476; 93, 463; 112, 294; 129, 305; 134, 29; 143, 228; 143, 234; 145, 349. Prob. Act, sec. 279. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 651. Cal. Rep. Cit. 36, 654; 86, 655; 51, 151. § 1698. Discovery of property. The final settlement of an estate, as in this chapter provided, shall not prevent a subsequent issue of letters testamentary, or of adminis- ration, or of administration with the will annexed, if other property of the estate be discovered, or if it become neces- sary or proper for any cause that letters should be again issued. En. March 11, 1872. Am'd. 1873-4, 373. Cal. Rep. Cit. 57, 388; 136, 370. Prob. Act, sec. 280. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 651; 1872, 85. S41 PARTITION AND SETTLEMENT. g 1099 ARTICLE V. [New article added March 19, 1889; Stats. 1889, p. 337. In effect immediately.] ACCOUNTS OF TRUSTEES— DISTRIBUTION. § 1699. Superior court not to lose jurisdiction by final distribution. § 1700. Compensation of trustees. I 1701. Appeal from decree settling account. § 1702. Trustee may decline. Resignation of executor. Appointment by court. § 1703. Jurisdiction. § 1703Vi. Distribution to treasurer. § 1699. Superior court not to lose Jurisdiction by final distribution. Where any trust has been created by or under any will to continue after distribution, the superior court shall not lose jurisdiction of the estate by final dis- tribution, taut shall retain jurisdiction thereof for the purpose of the settlement of accounts under the trusts. And any trustee created by any will, or appointed to ex- ecute any trust created by any will, may, from time to time, pending the execution of his trust, or may, at the termination thereof, render and pray for the settlement of his accounts as such trustee, before the superior court in which the will was probated, and in the manner pro- vided for the settlement of the accounts of executors and administrators. The trustee, or, in the case of his death, his legal representatives, shall, for that purpose, present to the court his verified petition, setting forth his ac- counts in detail, with a report showing condition of trust estate, together with a verified statement of said trustee, giving the names and postofflce addresses, if known, of the cestuis que trust, and, upon the filing thereof, the court, or judge, shall fix a day for the hearing. The clerk must thereupon give notice thereof of not less than ten days, by causing notices to be posted in at least three public places in the county, setting forth the name of the trust estate, the trustee, and the day appointed for the settlement of the account. The court, or a judge thereof, may order such further notice to be given as may be proper. Such trustee may, in the discretion of the court, upon application of any beneficiary of the tmst, or the Code Civil Proc— 41. §§ 1700-1702 PARTITION AND SETTLEMENT. MJ guardian of such beneficiary, be ordered to appear and render his account, after being cited by service of citation, as provided for the service of summons in civil cases, and such application shall not be denied where no account has been rendered to the court within six months prior to such application. Upon the filing of the account so or- dered, the same proceedings for the hearing and settle- ment thereof shall be had as hereinabove provided. En. Stats. 1889, 337. Am'd. 1895, 64; 1900-01, 47. Cal. Rep. Cit. 107, 595; 128, 684; 1S3, 495: 145, 340; 145, 347; 145, 350. § 1700. Compensation of trustees. On all such account- ings the court shall allow the trustee or trustees the proper expenses and such compensation for services as the court may adjudge to be just and reasonable, and shall apportion such compensation among the trustees accord- ing to the services rendered by them respectively, and may in its discretion fix a yearly compensation for the trustee or trustees to continue as long as the court may judge proper. En. Stats. 1889, 338. § 1701. Appeal from decree settling account. From a decree settling such account appeal may be tal- lished, is sufficient for all purposes. § 1713. Rules of practice generally. § 1714. New trials and appeals. § 1715. Within what time appeal must be taken. § 1716. Issues joined in probate court, how tried and disposed of. § 1717. Court to try case when no jury is demanded. How and what issues to be tried. § 1718. Court to appoint attorney for minor or absent heirs, devisees, legatees, or creditors, when, and what compensation he is to receive. (Repealed.) § 1719. Decrees, what to be recorded. § 1720. Costs, by whom paid in certain cases. § 1721. Executor, etc., to be removed when committed for contempt. § 1722. Service upon guardian. § 1723. Disposition of life estates or homesteads or community prop- erty in certain cases. § 1704. Orders and decrees to be entered in minutes. Or'iers and decrees made by the court, or a judge thereof, In probate proceedings, need not recite the existence of facts, or the performance of acts, upon which the juris- diction of the court or judge may depend, but it shall only e45 ORDERS, DECREES. ETC. §§ 1705-1705 be necessary that they contain the matters ordered or ad- judged, except as otherwise provided in this title. All orders and decrees of the court or judge must be entered at length in the minute-book of the court. En. March 11, 1872. Am'd. 1873-4, 374; 1880. 105. Cal. Rep. Cit. 72, 578; 99, 515; 110, 227; 119, 28; 122, 529; 139, 696; 143, 411. Prob. Act, sec. 287. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 652. Cal. Rep. Cit. 51, 150. § 1705. How often publication to be made. WTien any publication is ordered, such publication must be made daily, or otherwise as often during the prescribed period as the paper is regularly issued, unless otherwise provided in this title. The court, or a judge thereof, may, however, order a less number of publications during the period. En. March 11, 1872. Am'd. 1880, 105. Cal. Rep. Cit. 73, 559; 84, 446; 84, 447; 120, 431; 121, 524. Affidavit of publication: Post, sees. 2010, 2011. § 1706. Recorded decree or order to impart notice from date of filing. When it is provided in this title that any order or decree of the court, or a judge thereof, or a copy thereof must be recorded in the ofTice of the county recorder, from the time of filing the same for record, no- tice is imparted to all persons of the contents thereof. En., March 11, 1872. Am'd. 1880, 105. § 1707. Citation, how directed and what to contain. Citations must be directed to the person to be cited, signed by the clerk and issued under the seal of the court, and must contain: 1. The title of the proceeding; 2. A brief statement of the nature of the proceeding; 3. A direction that the person cited appear at a time and place specified. En. March 11, 1872. Cal. Rep. Cit. 68, 86; 72, 24; 116, 451. § 1708. Citation, how issued. The citation may be Is- sued by the clerk upon the application of any party with- out an order of the judge, except in cases in which such order is by the provisions of this title expressly required. En. March 11, 1872. Cal. Rep. Cit 68, 86; 72, 24; 116, 4" §§ 1709-1713 OFDERS, DECREES, ETC. 6411 § 1709. Citation, how served. The citation must 'be served in the same manner as a summons in a civil action. En. March 11, 1872. Cal. Rep. Cit. C7, 19; C8, 86; C8, 87; 72. 24; 109, 254; 116, 451; 143, 21. Prob. Act, sec. 289. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 653. Cal. Rep. Cit. 68, 89. Service of citation — time for: Post, sec. 1711; of sum- mons: Ante, sec. 410. § 1710. Personal notice given by citation. When per- sonal notice is required, and no mode of giving it is pre- scribed in this title, it must be given by citation. En. March 11, 1872. Cal. Rep. Cit. 67, 19; 68, 86; 68, 87. Prob. Act, sec. 288. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 652. Cal. Rep. Cit. 68, 89. § 1711. Citation to be served five days before return. When no other time is specially prescribed in this title, citations must be served at least five days before the re- turn day thereof. En. March 11, 1872. Cal. Rep. Cit. 116, 451. Prob. Act, sec. 290. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 653. § 1712. One description of real estate sought to be sold being published, is sufficient for all purposes. When a complete description of the real property of an estate sought to be sold has been given and published in a news- paper, as required in the order to show cause why the sale should not be made, such description need not be published in any subsequent notice of sale or notice of a petition for the confirmation thereof. It is sufficient to refer to the description contained in the publication of the first notice, as being proved and on file in the court. En. March 11, 1872. Cal. Rep. Cit. 139, 20. § 1713. Rules of practice generally. Except as other- wise provided in this title, the provisions of part two of this code are applicable to and constitute the rules of prac- 647 ORDERS. DECREES, ETC. §§ 1714-1716 tice in the proceedings mentioned in this title. En. March 11, 1872. Cal. Rep. Cit. 55, 576; 56, 325; 61, 163; 63, 37; 74, 205; 80, 145; 93, 623; 108, 94; 116, 450; 133, 585; 139 591' 145 467. Prob. Act, sec. 293. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 653. Cal. Rep. Cit. 46, 247. Part two: Ante, sees. 307 et seq. § 1714. New trials and appeals. The provisions of part two of this code, relative to new trials and appeals — except in so far as they are inconsistent with the provis- ions of this title — apply to the proceedings mentioned in this title. En. March 11. 1872. Cal. Rep. Cit.. 53, 631; 55, 576; 68, 132; 74, 205; 83, 619; 88, 315; 93, 618; 133, 585. New trials: Ante, sees. 656 et seq.; appeals, Ante, sees 936 et seq. § 1715. Within what time appeal must be taken. The appeal must be taken within sixty days after the order, decree, or judgment is entered. En. March 11, 1872. Cal. Rep. Cit. 54.228; 55,576; 64,379; 64,428; 68,132; 74, 205; 75, 524; 83, G19; 93, 621; 95. 672; 96, 114; 98. 553; 109, 646; 119. 28; 122, 529; 133, 322; 133, 323; 134, 122; 138, 197; 141, 73; 147, 194. Appeals from superior courts — in probate matters: Sec. 963, subd. 3. § 1716. Issues joined in probate court, how tried and dis- posed of. All issues of fact joined in probate proceedings must be tried in conformity with the requirements of article two, chapter two, of this title, and in all such pro- ceedings the party affirming is plaintiff, and the one deny- ing or avoiding is defendant. Judgments therein, on the issue joined, as well as for costs, may be entered and enforced by execution or otherwise by the court, as in civil actions. En. March 11, 1872. Am'd. 1880, 106. Cal. Rep. Cit. 55, 576; 56, 325; 68, 132; 72, 339; 74, 205; 74, 207; 116, 643; 133, 585; 140, 439; 147, 128. Prob. Act, sec. 294. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1855, 300; 1861, 653; 1868, 629. Cal. Rep. Cit. 35, 510; 35, 511. Trial of issues: Post, sec. 1717. j§ 1717-1720 ORDERS. DKCRKKS, KTC 648 § 1717. Court to try case when no jury is demanded. How and what issues to be tried. If no jury is demanded, the court must try the issues joined. If on written de- mand a jury is called by either party, and the issues are not sufficiently made up by the written pleadings on file, the court, on due notice to the opposite party, must settle and frame the issues to be tried, and submit the same, to- gether with the evidence of each party, to the jury, on which they must render a verdict. Either may move for a new trial, upon the same grounds and errors, and in like manner, as provided in this code for civil actions. En. March 11, 1872. Cal. Rep. Cit. 68, 132; 72, 339; 74, 207; 96, 114; 133, 585. New trials: Ante, sec. 1714. § 1718. Court to appoint attorney for minor or absent heirs, devisees, legatees, or creditors, when, and what compensation he is to receive. En. March 11, 1872. Am'd. 1873-4, 374; 1880, 106. Rep. 1903, 243. Cal. Rep. Cit. 75, 599; 93, 629; 125, 258; 134, 6. § 1719. Decrees, what to be recorded. When a judgment or decree is made, setting apart a homestead, confirming a sale, making distribution of real property, or deter- mining any other matter affecting the title to real prop- erty, a certified copy of the same must be recorded in the office of the recorder of the county in which the property is situated. En. March 11, 1872. Am'd. 1873-4, 375. Prob. Act, sec. 296. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1855, 301; 18G1, 654. § 1720. Costs, by whom paid in certain cases. When it is not otherwise prescribed in this title, the superior court, or the supreme court on appeal, may, in its discretion, order costs to be paid by any party to the proceedings, or out of the assets of the estate, as justice may require. Execution for the costs may issue out of the superior court. En. March 11, 1872. Am'd. 1880, 106. Cal Rep. Cit. 47, 452; 93, 571; 112, 453; 120, 452; 120, 453; 120, 454; 141, 426. Prob. Act. sec. 302. En. April 22, 1850. Rep. 1851, 483 En. 1851, 448. Am'd. 1855, 302. Cal. Rep. Cit. 36, 280. 649 ORDERS, DECREES, ETC. §§ 1721-1723 Costs against executor — or adrainistrator: Ante, see. 1509. § 1721. Executor, etc., to be removed when committed for contempt. Whenever an executor, administrator, or guardian is committed for contempt in disobeying any lawful order of the court, or a judge thereof, and has re- mained m custody for thirty days without obeying such order, or purging himself otherwise of the contempt, the court may, by order reciting the facts, and without further showing or notice, revoke his letters and appoint some other person entitled thereto executor, administrator, or guardian in his stead. En. March 11, 1872. Am'd. 1880, 106. § 1722. Service upon guardian. Whenever an infant, insane, or incompetent person has a guardian of his es- tate residing in this state, personal service upon the guardian of any process, notice, or order of the court con- cerning the estate of a deceased person in which the ward is interested, is equivalent to service upon the ward, and it is the duty of the guardian to attend to the interests of the ward in the matter. Such ^lardian may also appear for his ward and waive any .process, notice, or order to show cause which an adult or a person of sound mind might do. En. Stats. 1873-4, 375. Am'd. 1880, 107. § 1723. Disposition of life estates or liomesteads, or com- munity property, on owner's death in certain cases. If any person has died or shall hereafter die who at the time of his death was the owner of a life estate which termin- ates by reason of the death of such person, or if such per- son at the time of his death was one of the spouses own- ing lands as a homestead, which lands by reason of the death of such person, vest in the surviving spouse; or if such person was a married woman who at the time of her death v/as the owner of community property which passed upon her death to the surviving husband; any person In- terested in the property, or in the title thereto, in which such estates or interests were held, may file in the superior court of the county in v/hich the property is situated, his verified petition setting forth such facts, and thereupon and after such notice by publication or otherwise, as the court may order, the court shall hear such petition and the evidence offered in support thereof, and if upon ssch hear- § 1726 PUBLIC ADMINISTRATOR 65C ing it shall appear that such life estate of such deceased person absolutely terminated by reason of his death, or such homestead or community, property vested in the survivor of such marriage, the court shall make a decree to that effect, and thereupon a certified copy of such de- cree may be recorded in the office of the county recorder, and thereafter shall have the same effect as a final decree of distribution so recorded. En. Stats. 1881, 35. Am'd. 1897, 62; 1905, 146. Cal. Rep. Cit. 102, 538; 102, 541; 131, 450; 136, 387; 142, 120. CHAPTER XIII, OF PUBLIC ADMINISTRATOR. § 1726. What estates to be administered by public administrator. § 1727. Public administrator to obtain letters, when and how. Hia bond and oath. § 172S. Duty of persons in whose house any stranger dies.- § 1729. Must return inventory and administer estates according to this title. § 1730. When another person is appointed administrator or executor, public administrator to deliver up the estate. § 1731. Civil officers to give notice of waste to public administrator. § 1732. Suits for property of decedents. § 1733. Order to examine party charged with embezzling estate. § 173*. Punishment for refusing to attend. § 1735. Order on public administrator to account. § 1736. Every six months to make and publish return of condition ot estate. § 1737. Moneys pai'd to ceunty treasurer. Investments. Escheat. § 1738. Not to be interested in the payments for or on account of es- tates in his hands. § 1739. When to settle with county clerli, and how unclaimed estate disposed of. § 1740. Procee'dings against public administrator for failure to pay over money as ordered. § 1741. Fees of officers, when and by whom paid. § 1742. Public administrator to administer oaths. § 1743. Preceding chapters applicable to public administrator. § 1744. To file reports. Penalty for failure. Duty of district attorney. § 1726. What estates to be administered by public ad- ministrator. Every public administrator, duly elected, com- missioned, and qualified, must take charge of the estates of persons dying within his couniy as follows: 1. Of the estate of decedents for which no administra- tors are appointed, and which, in consequence thereof, are being wasted, uncared -for, or lost; «51 PUBLIC ADMINISTRATOR. §§ 1727, 1728 2. Of the estate of decedents who have no known heirs; 3. Of the estates ordered into his hands by the court; and 4. Of the estates upon which letters of administration have been issued to him by the court. En. March 11, 1872. Am'd. 1880, 107. Gal. Rep. Cit. 76, 297; 7G, 298; 101, 613; 127, 661; 127, 662; 143, 202; 146, 592; 146, 593; 146, 594; 146, 597. Public administrator. — B.y act approved March 30, 1872, Stats. 1871-2, which took effect immediately, if the public administrator of any county of this state fails to qualify, or in person fails to perform the duties of his office, the coroner of such county shall be ex-officio public adminis- trator; and in case both public administrator and coroner fail to qualify, or perform the duties appertaining thereto, the supervisors shall appoint a suitable person to be public administrator; and all laws applicable to the qualification, powers, duties, and compensation of public administrator shall apply to the coroner or appointee of the supervisors as aforesaid. This act was repealed by the County Gov- ernment Act, 1897, 490, sees. 142-147, prescribing the duties of coroner. Fees: Ante, sec. 1618. § 1727. Public administrator to obtain letters, when and how. His bond and oath. Whenever a public administra- tor takes charge of an estate, which he is entitled to ad- minister without letters of administration bein'g issued, or under order of the court, he must, with all convenient dispatch, procure letters of administration thereon, in like manner and on like proceedings as letters of administra- tion are issued to other persons. His official bond and oath are in lieu of the administrator's bond and oath; but when real estate is ordered to be sold, another bond may be required by the court. En. March 11, 1872. Cal. Rep. Cit. 127, 661; 127, 662; 146, 593; 146, 725. Delivering estate to another appointed: Post, sees. 1730, 1735. Bond on sale of real estate: Ante, sec. 1389. § 1728. Duty of persons in whose house any stranger dies. Whenever a stranger, or person without known heirs, dies intestate in the house or premises of another, the §§ 1729-1731 PUBLIC ADMINISTRATOR. BM possessor of such premises, or any one knowing the facts, must give immediate notice thereof to the public adminis- trator of the county; and in default of so doing, he is liable for any da.mage that may be sustained thereby, to be recoYered by the public administrator, or any party in- terested. En. March 11, 1872. Cal. Rep. Cit. 143, 202. Prob. Act, sec. 304. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 7, 231. § 1729. Must return inventory and administer estates according to this title. The public administrator must make and return a perfect inventory of all estates taken into his possession, administer and account for the same according to the provisions of this title, subject to the control and directions of the court. En. March 11, 1872, Am'd. 1880, 107. Cal. Rep. Cit. 143, 202. Prob. Act, sec. 305. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. CaJ. Rep. Cit. 7, 231. § 1730. When another person is appointed administrator or executor, public administrator to deliver up the estate. If, at any time, letters testamentary or of administration are regularly granted to any other person on an estate of which the public administrator has charge, he must, under the order of the court, account for, pay, and deliver to the executor or administrator thus appointed, all the money, property, papers, and estate of every kind in his possession or under his control. En. March 11, 1872. Am'd. 1880, 107. Cal. Rep. Cit. 101, 613. Prob. Act, sec. 306. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 7, 232. § 1731. Civil officers to give notice of waste to public administrator. All civil officers must inform the public administrator of all property known to them, belonging to a decedent, which is liable to loss, injury, or waste, and which, by reason thereof, ought to be in the possession of the public administrator. En. March 11, 1872. 653 PUB-LIC ADMINISTRATOR. §§ 1732-1735 Prob. Act, sec. 307. Eu. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1732. Suits for property of decedents. The public administrator must institute all suits and prosecutions necessary to recover the property, debts, papers, or other estate of the decedent. En. March 11, 1872. Prob. Act, sec. 808. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. § 1733. Order to examine party charged with embezzling estate. When the public administrator complains to the superior court, or a judge thereof, on oath, that any person has concealed, embezzled, or disposed of, or has in his possession any money, goods, property, or effects, to the possession of which such administrator is entitled in his official capacity, the court or judge may cite such person to appear before the court, and may examine him, on oath, touching the matter of such complaint. En. March 11, 1872, Am'd. 1880, 107. Prob. Act, sec. 309. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Citation: Ante, sees. 1707-1711. § 1734. Punishment for refusing to attend. All such interrogatories and answers must be reduced to writing and signed by the pai'ty examined, and filed in the court. If the person so cited refuses to appear and submit to such examination, or to answer such interrogatories as may be put to him touching the matter of such complaint, the court may commit him to the county jail, there to remain, in close custody, until he submits to the order of the court. En. March 11, 1872. Am'd. 1880, 107. Prob. Act, sec. 310. En. April 22, 1850. Rep. 1851, 489. En. 1851, 449. Contempt: Ante, sees. 1209 et seq. § 1735. Order on public administrator to account. The court may, at any time, order the public administrator to account for and deliver all the money and property of an estate in his hands to the heirs, or to the executors or administrators regularly appointed. En. March 11, 1872. Am'd. 1880, 108. Cal. Rep. Cit. 146, 597. §§ 173G. 1737 PUBLIC ADMINISTRATOR. (iM Prob. Act, sec. 311. En. April 22, 1850. Rep. 1850, 489. En. 1851, 448. Cal. Rep. Cit. 7, 232. § 1736. Every six months to make and publish return of condition of estate. The public administrator, or any person who received letters of administration while acting as public administrator, must, once in every six months, make to the superior court, under oath, a return ot all the estates of decedents which have come into his hands, the value of each estate, the money which has come into his hands from every such estate, and what he has done with it, and the amount of his fees, and expenses incurred in each estate, and the balance, if any, in each such case remaining in his hands; publish the same six times in some newspaper published in the county, or if there is none, then post the same, legibly written or printed, in the office of the county cleric of the county. One copy of the return must be filed with papers in each estate so reported. En. March 11, 1872. Am'd. 1880, 108; 1895, 157. Cal. Rep. Cit. 127, 185; 127, 188; 146, 594. Prob. Act, sec. 812. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Cal. Rep. Cit. 7, 232. § 1737. Moneys paid to county treasurer. Investments. Escheat. It is the duty of every public administrator, as soon as he shall receive the same, to deposit with the county treasurer of the county in which the probate pro- ceedings are pending, all moneys of the estate not required for the current expenses of the administration; and such moneys may be drawn upon the order of the executor or administrator, countersigned by a superior judge, when required for the purposes of administration. It shall be the duty of the county treasurer to receive and safely keep all such moneys, and pay them out upon the order of the executor or administrator, when countersigned by a supe- rior judge, and not otherwise, and to keep an account with such estate of all moneys received and paid to him; and the county treasurer shall be allowed one per cent upon all moneys received and kept by him, and no greater fees for any services herein provided; and for the safekeeping and payment of all such moneys, as herein provided, the said 655 PUBLIC ADMINISTRATOR. §5 1738-1740 treasurer and his sureties shall be responsible upon his official bond. The moneys thus deposited may, upon order of the court, be invested, pending the proceedings, in securities of the United States, or of this state, when such investment is deemed by the court to be for the best interests of the estate. After a final settlement of the affairs of any estate, if there be no heirs, or other claimants thereof, the county treasurer shall pay into the state treasury all moneys and effects in his hands belonging to the estate, upon order of the court; and if any such moneys and effects escheat to the state, they must be disposed ol as other escheated estates. En. March 11, 1872. Am'd. 1873-4, 376; 1880, 108. Cal. Rep. Cit. 143, 196; 143, 202; 143, 204; 143, 205; 143, 206. Escheated estates: Ante, sees. 1269-1272. § 1738. Not to be interested in the payments for or on account of estates in Ills hands. The public administrator must not be interested in the expenditures of any kind made on account of any estate he administers; nor must he be associated in business or otherwise with any one who is so interested, and he must attach to his report and publication, made in accordance with the preceding sec- tion, his affidavit to that effect. En. March 11, 1872. Cal. Rep. Cit. 55, 142; 103, 586. § 1739. When to settle with county clerk, and how un- claimed estate disposed of. Public administrators are required to account, under oath, and to settle and adjust their accounts relating to the care and disbursement ol money or property belonging to estates in their hands, with the county clerks of their respective counties, on the first Monday in January and July in each year; one copy of said account to be filed with tho papers in each of such estates; and they must pay to the county treasurer any money re- maining in their hands of an estate unclaimed, as provided in sections sixteen hundred and ninety-three to sixteen hundred and ninety-six, both inclusive. En. March 11, 1872. Am'd. 1895, 124. Cal. Rep. Cit. 76, 298; 123, 549; 146, 594. § 1740. Proceedings against public administrator for failure to pay over money as ordered. When it appears, from the returns made in pursuance of the foregoing sec- §§ 1741-1744 PUBLIC ADMINISTRATOR. 656 tions, that any money remains in. the hands of the public administrator (after a final settlement of the estate) un- claimed, which should be paid over to the county treasurer, the superior court, or a judge thereof, must order the same to be paid over to the county treasurer; and on failure of the public administrator to coir ply with the or.'er within ten days after the same is made, the district attorney for the county must immediately institute the requisite legal proceedings against the public administrator for a judg- ment against him and the sureties on his official bond, in the amount of money so withheld, and costs. En. March 11, 1872. Am'd. 1880, 109. Cal. Rep. Cit. 146, 594. § 1741. Fees of officers, when and by whom paid. The fees of all officers chargeable to estates in the hands oE public administrators, must be paid out of the assets there- of so soon as the same come into his hands. En. March 11, 1872. § 1742. Public administrator to administer oaths. Pub- lic administrators may administer oaths in regard to all matters touching the discharge of their duties, or the ad- ministration of estates in their hands. En. March 11, 1872. Administration of oaths: Post, sees. 2093 et seq. Cal. Rep. Cit. 146, 594, § 1743. Preceding chapters applicable to public adminis- trator. When no direction is given in this chapter for the government or guidance of a public administrator in the discharge of his duties, or for the administration of an estate in his hands, the provisions of the preceding chap- ters of this title must govern. En. March 11, 1S72. Cal. Rep. Cit. 76, 298; 101, 613; 146, 592. § 1744. To file reports. Penalty for failure. Duty of district attcrney. Every public administrator, or person v/ho holds letters of administration, who was appointed while acting as public administrator, who fails to comply with the provisions of sections seventeen hundred and thirty-five, seventeen hundred and thirty-six, and section seventeen hundred and thirty-nine of this code, is guilty of a misdemeanor; and upon conviction thereof, shall be punished by a fine not less than one hundred dollars for each offense; and it shall be the duty of the district attor- ney of the county to see that the provisions of this chapter are fullv complied with. En. Stats. 1895, 38. Cal. Rep. Cit. 146, 75. 657 GUARDIAN AND WARD. 8^47 CHAPTER XrV. OF GUARDIAN AND WARD. Article I. Guardians of Minors, §§ 1747-1759. II. Guardians of Insane and Incompetent Persons, §§ 1763-1767. III. The Powers and Duties of Guardians, §§ 17GS-1776. IV. The Sale of Property and Disposition of Proceeds, § 1777- 1792. V. Nonresident Guardians and Wards, §§ 1793-1799. VI. General and Miscellaneous Provisions, §§ 1800-1810. ARTICLE I. GUARDIANS OF MINORS. § 1747. Superior court to appoint guardians, when and on what peti- tion. § 1748. When minor may nominate guardian; when not. § 1749. When appolntmeat may be made by court, when minor is ov«P fourteen. § 1750. Nomination by minors after arriving at fourteen. § 1751. Who may be guardian. Marriage of guardian. § 1752. Minor having no father or mother. § 1753. Powers and 'duties of guardian. § 1754. Bond of guardian, conditions of. § 1755. Court may insert conditions in order appointing guardian. § 1756. Letters of guardianship and bond of guardian to be recorded. § 1757. Maintenance of minor out of income of his own property. § 1758. Guardian to give bond. Powers limited. § 1759. Power of courts to appoint guardians and next friend not Im- paired. § 17$0. Transfer of proceedings from one county to another. Gen. Cit. to Art. — Cal. Rep. Cit. Ill, 271, § 1747. Superior court to appoint guardians, when and on what petition. The superior court of each county, when it appears necessary or convenient, may appoint guardians for the persons and estates, or either of them, of minors who have no guardian legally appointed by will or deed, and who are inhabitants or residents of the county, or who reside without the state and have estate within the county. Such appointment may be made on the petition of a relative or other person on behalf of the minor, or on the petition of the minor, if fourteen years of age. Before making such appointment, the court must cause such notice as such court deemp reasonable to be given to any person having the care of such minor, and to sucli relatives of the minor residing in the county as the court may deem proper. In all such proceedings when it appears to the satisfaction of Code Civil Proc— 42. 5J 174S, 1743 GUARDIAN AND WARD. 65S the court, either from a verified petition, or from afiQdavits, that the welfare of the minor will be imperiled if such minor is allowed to remain in the custody of the person then having the care of such minor, the court may make an order providing for the temporary custody of such minor until a hearing can be had on such petition; and when it appears to the court that there is reason to believe that such minor will be carried out of the jurisdiction of the court before which the application is made, or will suffer some irreparable injury before compliance with such order providing for the temporary custody of such minor can be enforced, such court may at the time of making such order providing for the temporary custody of such minor cause a warrant to be issued, reciting the facts and directed to the sheriff, coroner, or constable of the county, command- ing such ofScer to take such minor from the custody of the person in whose care such minor then is and place such minor in custody in accordance with ihe order of the court. En. March 11, 1872. Am'd. 1873-4, ;]77; 1880,65; 1903,204. Cal. Rep. Cii. 74, 424; 83. 352; 84, 596; 95, 377; 109, 646; 109,647; 109,649; 109.656; 126,55; 128,219; 130, 383; 131, 182; 140, 266; 142, 413; 143, 406; 143, 407. Powers and duties of guardians: Post, sees. 1TG8 et seq. Guardian and ward: See Civ. Code, sees. 236-258. Guardian ad litem: Ante, sees. 372, 373; post, sees. 1722, 1759, 1769. Minors who are: Civ. Code, sees. 25, 26. Freeing from parental authority because of abuse: Civ. Code. sec. 203. Authority of parent ceases when: Civ. Code, sec. 204. Seal necessary to appointment of guardian: Ante, sec. 153, subd. 2. § 1748. When minor may nominate guardian; when not. If the minor is under the age of fourteen years, the court may nominate and appoint his giiardian. If he is fourteen years of age, he may nominate his own guardian, who, if approved Dv the court, must be appointed accordingly. En. March 11, 1872. Am'd. 1880, 65. Cal. Rep. Cit. 142, 413; 143, 407. § 1749. When appointment may be made by court, when minor is over fourteen. If the guardian nominated by the minor is not approved by the court, or if the minor resides 559 GUARDIAN AND WARD. §§ 17&0-1753 out Of the State, or if, after being duly cited by the court he neglects for ten davs to nominate a suitable person, the court or judge may nominate and appoint the guardian in the same manner as if the minor were under the age of fourteen years. En. March 11, 1872. Am d. 1880, 6t). Cal. Rep. Cit. 72, 24; 142, 413; 143, 40 <. 8 1750. Nomination by minors after arriving at fourteen. When a guardian has been appointed ^Y the court for a minor under the age of fourteen years, the f'^l^'^^^^I time after he attains that age, may appoint his ojvn |^^J dian. subject to the approval of the court. En. March 11. 1872. Am'd. 1880, 65. Cal. Rep. Cit. 142, 413. 5 1751. Who may be guardian. Marriage of guardian. The father or the mother of a minor child under the age of fourteen years, if found by the court competent to dis- charge the duties of guardianship, is entitled to be ap- pointed a guardian of such minor child, in preference^ to any other person. The person nominated by a minor of the age of fourteen years as his guardian, whether married or unmarried, may, if found by the court competent to dis- charge the duties of guardianship, be appointed as su^ Sfrdlan. The authority of a guardian is not extinguished nor affected by the marriage of the guardian. En. March ^ne^^:'S^; 130,383; 142,413; 142,414; 142 426; 143, 234. ^ _* - The parent, as such, has no control over the property of the child: Civ. Code, sec. 202. Bond, testamentary guardian must give: Post, sec. 1.58. § 1752 iVIinor having no father or mother. If the minor has no father or mother living, competent to have the custody and care of his education, the guardian appointed shall have the same. En. March 11, 1872. 6 1753 Powers and duties of guardian. Every guardian appointed shall have the custody and care of th^ education of me minor and the care and management of his estate, until such minor arrives at the age of majority or marries, or until the guardian is legally discharged. En. March 11, ^%al Rep. Cit. 117, 644; 120, 204; 121, 474; 121. 475; 142, 426; 143, 229; 143, 403. Residence of ward: Civ. Code, sec. 213. §1 1754, 1755 GUARDIAN AND WARD. $80 § 1754. Bond of guardian, conditions of. Before the or- der appointing any person guardian under this chapter takes effect, and before letters issue, the court must re- quire of such person a bond to the minor with sufficient sureties, to be approved by the Judge, and in such suna as he shall order, conditioned that the guardian will faithfully execute the duties of his trust according to law, and the following conditions shall form a part of such bond with- out being expressed therein: 1. To make an inventory of all the estate, real and per- sonal, of his v,'ard, that comes to his possession or knowl- edge, and to return the same within such time as the court may order. 2. To dispose of and manage the estate according to law and for the best interest of the ward, and faithfully to dis- charge his trust in relation thereto, and also in relation to the care, custody, and education of the ward. 3. To render an account on oath of the property, estate, and moneys of the ward in his hands, and all proceeds or interests derived therefrom, and of the management and disposition of the same, within three months after his appointment, and at such other times as the court directs, and at the expiration of his trust to settle his accounts with the court, or with the ward, if he be of full age, or his legal representatives, and to pay over and deliver all the estate, moneys, and effects remaining in his hands, or due from him on such settlement, to the person who is lawfully entitled thereto. Upon filing the bond, duly approved, letters of guardianship must issue to the person appointed. In form the letters of guardianship must be substantially the same as letters of administration, and the oath of the guardian must be indorsed thereon that he will perform the duties of his office as such guardian according to law. En. March 11, 1872. Am'd. 1880, 65. Gal. Rep. Cit. 53, 17; 65, 229; 84, 596; 84, 597; 117, 644. Subd. 3—121, 472; 121, 474; 143, 236. Accounts of guardians — rendering: Post, sees. 1773, 1774. Guardian's bond: Post, sec. 1758; liability on: Ante, sec. 1407. § 1755. Court may insert conditions in order appointing guardian. When any person is appointed guardian of a minor, the court may, with the consent of such person, in- sert in the order of appointment, conditions not otherwise obligatory, providing for the care, treatment, education, and welfare of the minor, and for the care and custody o£ Ml GUARDIAN AND WARD §§ 1756-1768 his property. The performance of such conditions shall be a part of the duties of the guardian, for the faithful performance of which he and the sureties on his bond shall be responsible. En. March 11, 1872. Am'd. 1880, 66; 1899, 4. Guardian's bond — liability on: Ante, sec. 1407. Letters of g\iardianship — special, issuable at chambers: Ante, sec. 166. § 1756. Letters of guardianship and bond of guardian to be recorded. All letters of guardianship issued, and all guardian's bonds executed under the provisions of this chapter, with the aflBdavlts and certificates thereon, must be recorded by the clerk of the court having jurisdiction of the persons and estates of the wards. En. March 11, 1872. Am'd. 1880, 66. § 1757. Maintenance of minor out of income of his own property. If any minor having a father living has property, the income of which is suflBcient for his maintenance and education in a manner more expensive than his father can reasonably afford, regard being had to the situation of the father's family and to all the circumstances of the case, the expenses of the education and maintenance of such minor may be defrayed out of the income of his own prop- erty, in whole or in part, as judged reasonable, and must be directed by the court; and the charges therefor may be allowed accordingly in the settlement of the accounts of his guardian. En. March 11, 1872. Am'd. 1880, 66. § 1758. Guardian to give bond. Powers limited. EJvery testamentary guardian must qualify and has the same powers and must perfom the same duties with regard to the person and estate of his ward as guardians appointed by the court, except so far as his powers and duties are legally modified, enlarged, or changed by the will by which such guardian was appointed, and except that such guar- dian need not give bond unless directed to do so by the court from which the letters of guardianship issue. En. March 11, 1872. Am'd. 1880, 67; 1903, 53. Cal. Rep. Cit. 55, 85; 84, 596. Testamentary guardian — bond of: Ante, sec. 1754. Guardian's bond, liability on: Ante, sec. 1407. §§ 1759, 1760 GUARDIAN AND WARD. M2 § 1759. Power of courts to appoint guardians and next friend not impaired. Nothing contained in this chapter affects or impairs the power of any court to appoint a guardian to defend the interests of any minor interested in any suit or matter pending therein. En. March 11, 1872. Guardian ad litem: Ante, sees. 372, 373, 1722; post, sec. 1769. § 1760. Transfer of proceedings from one county to an- other county. The superior court of any county in this state in which is now pending, or in which there may be hereafter commenced, any proceeding which has for its object the guardianship of the estate of any minor or in- sane or incompetent person, or the guardianship of the person of any minor or insane or incompetent person, or both the guardianship of the estate and the guardianship of the person of a minor or insane or incompetent person, may malie an order transferring such proceeding to the superior court of any other county in this state, in the manner herein provided; except that no such proceeding shall be transferred to the court of any county which at the time of such proceeding would not have jurisdiction to issue original letters in such matter or proceeding. To obtain an order for such removal, the guardian of the person or estate, or both, of such minor or insane of incompetent person, shall file in the superior court of the county where such proceeding is pending, a verified peti- tion setting forth the following matters: 1. The name of the county to the superior court of which it is sought to remove such proceedings; 2. The name of the county or counties in which the ward resides and that in which the guardian resides; 3. The name of the county or counties in which the property of Such ward is situated, and a designation of the character and condition thereof; 4. The reasons for such removal; 5. The names and residences, so far as they are known to said guardian, of any relative of such minor ward re- siding in said county in which said proceeding is pending; 6. The names and residences, so far as the same are known to said guardian, of the relatives within the third degree of such insane or incompetent ward residing in said county. Upon filing such petition an order shall be made by the court or judge fixing a time for hearing said petition, which shall be not less than five days thereafter, and di- W3 GUARDIAN AND WARD. § 1"63 recting that a copy of such order be sent through the United States mail to each of the said relatives of such minor or insane or incompetent ward, named in said peti- tion as resident in the county in which said proceeding is pending. The court may require such other or further notice of said hearing as it may deem proper. At the time fixed for the hearing of said petition any relatives of such ward, or any person interested in the es- tate of such ward, may appear and file written grounds of opposition to said petition. If after hearing the evidence of the petitioner, and contestant if any, it shall appear to the court that it is for the best interest and advantage of said ward, or of the estate of said ward that the re- moval of said proceeding be had to the court designated in said petition, or to the superior court of any other county, it shall enter an order directing the removal there- of to said court and directing the clerk to forward all pa- pers on file therein to the clerk of the court to which said proceeding has been ordered removed, and thereafter the court to which said proceeding has been removed shall have jurisdiction of all proceedings therein as fully as if said proceeding had been originally begun In said court. The clerk of the court to which said proceeding is re- moved shall be entitled to receive a fee of six dollars on filing the papers transmitted to him, in addition to the ex- pense of such transmission, payable on receipt of the papers by him. En. Stats. 1905, 171. ARTICLE II. GUARDIANS OF rNSANE AND INCOMPETENT PERSONS. § 1763. Guardians of insane and other incompetent persons. § 1764. Appointment of guardian by court after heaxing. § 1765. Powers and duties of such gxiardian. § 1766. Proceeding for restoration to capacity. § 1767. Definition of incompetent. § 1763. Guardians of insane and other incompetent per- sons. When it is represented to the superior court, or a judge thereof, upon verified petition of any relative or friend, that any person is insane, or from any cause men- tally incompetent to manage his property, such court or judge must cause a notice to be given to the supposed in- sane or incompetent person of the time and place of hear- ing the case, not less than five days before the time so appointed, and such person, if able to attend, must be pro- duced on the hearing. En. March 11, 1872. Am'd. 1880, 67. §§ 1764-1766 GUARDIAN ANU WARD. iSft* Cal. Rep. Cit. 57, 531; 87, 195; 120, 142; 120, 696; 120, 697; 127, 338; 134, 032; 140, 337; 143, 465. Right of person charged with insanity to jury trial: See Pol. Code, sec. 2174. Guardian ad litem — of insane or incompetent person: Ante, sees. 372, 373, 1722, 1759; post, sec. 1769. Placing lunatic in asylum: Civ. Code, sec. 258. Insane person — homestead of: See Stats. 1874, p. 582. Sale of homestead where husband or wife insane: Civ. Code, sec. 1242. § 1764. Appointment of guardian by court after hearing. If, after a full hearing and examination upon such peti- tion, it appear to the court that the person in question is incapable of taking care of himself and managing his property, such court must appoint a guardian of his person and estate, with the powers and duties in this chapter specified. En. March 11, 1872. Am'd. 1880, 67. Cal. Rep. Cit. 87, 197; 120, 142; 120, 696; 120, 697; 140, 337; 143, 465; 143, 467. Appointment at chambers: Ante, sec. 166; seal neces- sary: Sec. 153, subd. 2. § 1765. Powers and duties of such guardians. TSyerj guardian appointed, as provided in the preceding section, has the care and custody of the person of his ward, and the management of all his estate until such guardian is legally discharged; and he must give bond to such ward, in like manner and with like conditions as before pre- scribed with respect to the guardian of a minor. En. March 11, 1872. Cal. Rep. Cit. 140, 337. Bond of guardian: Ante, sec. 1754. § 1766. Proceeding for restoration to capacity. Any person who has been declared insane or incompetent, or the guardian, or any relative of such person within the third degree, or any friend, may apply, by petition, to the superior court of the county in which he was declared in- sane to have the fact of his restoration to capacity judi- cially determined. The petition shall be verified, and shall state that such person is then sane or competent Upon receiving the petition, the court must appoint a day for a hearing before the court, and, if the petitioner re- quest it, shall order an investigation before a jury, which shall be summoned and impaneled in the same manner as juries are summoned and impaneled in civil actions. The 6C5 GUARDIAN AXD WARD. §§ 1767, 1763 court shall cause notice of the trial to be given to the guardian of the person so declared insane or incompetent, if there be a guardian, and to his or her husband or wife, if there be one, and to his or her father, or mother, if liv- ing in the county. On the trial, the guardian or relative of the person so declared insane or incompetent, and, in the discretion of the court, any other person may contest the right to the relief demanded. Witnesses may be re- quired to appear and testify, as in civil cases, and may be called and examined by the court on its own motion. If it be found that the person be of sound mind, and capa- ble of taking care of himself and his property, his restor- ation to capacity shall be adjudged, and the guardian of such person, if such person be not a minor, shall cease. En. Stats. 1873-4, 377. Am'd. 1880, 67. Cal. Rep. Cit. 68, 282; 87, 195; 87, 197; 99, 222; 120, 142; 120, 143; 137, 681; 140, 337; 143, 467. Habeas corpus, right to where one detained as insane: See Pol. Ck)de, sec. 2188. § 1767. Definition of incompetent. The phrase "incom- petent," 'mentally incompetent," and "incapable," as used in this chapter, shall be construed to mean any per- son who, though not insane, is, by reason of old age, dis- ease, weakness of mind, or from any other cause, unable, unassisted, to properly manage and take care of himself or his property, and by reason thereof would be likely to be deceived or imposed upon by artful or designing persons. En. Stats. 1891, 68. CaL Rep. Cit. 130, 354; 140, 337; 140, 338. ARTICLE III. THE POWERS AND DUTIES OF GUARDIANS. § 1768. Guardian to pay debts of ward out of ward's estate. § 1769. Guardian to recover debts vine his ward and represent him. § 1770. Guardian to manage his estate, maintain ward, and seU real estate. § 1771. Maintenance, support, and education of ward, how enforced. § 1772. Guardians, i>owers of In petition. 5 1773. Guardian to return Inventory of estate of ward. Appraisers to be appointed. Like proceedings when other property ac- quired. § 1774. Settlements of guardians. § 1775. Allowance of accounts of joint guardians. § 1776. Expenses amd comi>ensation of guardians. § 1768. Guardian to pay debts of ward out of ward's estate. E^very guardian appointed under the provisions of this chapter, whether for a minor or any other person. 5§ 1769-1771 GUARDIAN AND WARD. 666 must pay all just debts due from the ward, out of his per- sonal estate, and the income of his real estate, if sufficient; if not, then out of his real estate, upon obtaining an order for the sale thereof, and disposing of the same in the man- ner provided in this title for the sale of real estate of de- cedents. En. March 11, 1872. Order of sale of property: Post, sees. 1770, 1777 et seq. § 1769. Guardian to recover debts due his ward and represent him. Every guardian must settle all accounts of the ward, and demand, sue for, and receive all debts due to him, or may, with the approbation of the court, compound for the same and give discharges to the debtor, on receiv- ing a fair and Just dividend of his estate and effects; and he must appear for and represent his ward in all legal suits and proceedings, unless another person be appointed for that purpose. En. March 11, 1872. Am'd. 1880, 68. Gal. Rep. Cit. 117, 644; 134, 248. Guardian ad litem: Ante, sees. 372, 373, 1722, 1759. § 1770. Guardian to manage his estate, maintain ward, and sell reai estate. Every guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereof, as far as may be necessary, for the comfortable and suitable maintenance and sup- port of the ward and his family, if there be any; and if such Income and profits be insufficient for that purpose, the guardian may sell or mortgage the real estate, upon obtaining an order of the court therefor, as provided, and must apply the proceeds of such sale or mortgage, as far as may be necessary, for the maintenance and support of the ward and his family, if there be any. En. March 11, 1872. Am'd. 1900-01, 85. Cal. Rep. Cit. 117, 644; 134, 116. Sale of property^ — and disposition of proceeds: Post, sees. 1777 et seq. § 1771. IVIaintenance, support, and education of ward, how enforced. When a guardian has advanced for the necessary maintenance, support, or education of his ward, an amount not disproportionate to the value of his estate or his condition of life, and the same is made to appear to the satisfaction of the court, by proper vouchers and proofs, the guardian must be allowed credit therefor in his settlements. Whenever a guardian fails, neglects, or re- fuses to furnish suitable and necessary maintenance, sup- port, or education for his ward, the court may order him to do so, and enforce such order by proper process. When- ever any third person, at his request, supplies a ward with e«T GUARDIAN AND WARD. 85 1''72, 1773 such siiltable and necessary maintenance, support, or edu- cation, and it is shown to have been done after refusal or neglect of the guardian to supply the same, the court may direct the guardian to pay tlierefor out of the estate, and enforce such payment by due process. En. March 11, 1872. § 1772. Guardians, powers of in partition. The guardian may join in and assent to a partition of the real or per- sonal estate of the ward, wherever such assent may be given by any person; provided, that such assent can only be given after the court having jurisdiction over said es- tate shall grant an order conferring such authority, which order shall only be made after a hearing in open court upon the petition of the guardian after notice of at least ten days, mailed by the clerk of the court to all the known relatives of the ward residing in the county where the proceedings are pendin-g. The guardian may also consent to a petition of the real or personal estate of his ward without action, and agree upon the share to be set off to such ward, and may execute a release in behalf of his ward to the owners of the shares, of the parts to which they may be respectively entitled, upon obtaining from said court having jurisdiction over said estate, authority to so consent after a hearing in open court upon the peti- tion of the guardian after notice of at least ten days, mailed by the clerk of the court to all the known relatives of the ward residing In the county where the proceedings are pending. En. March 11, 1872. Am'd. 1899, 235. Assent to partition: Ante, sec. 795. Appearance by guardian: Ante, sees. 372, 1722. § 1773. Guardian to return inventory of estate of ward. Appraisers to be appointed. Like proceedings when other property acquired. Every guardian must return to the court an inventory of the estate of his ward within three months after his appointment, and annually thereafter. When the value of the estate exceeds the sum of one hun- dred thousand dollars, semi-annual returns must be made to the court. The court may, upon application made for that purpose by any person, compel the guardian to render an account to the court of the estate of his ward. The Inventories and accounts so to be returned or rendered must be sworn to by the guardian. All the estate of the ward described in the first inventory must be appraised by appraisers appointed, sworn, and acting in the manner provided for regulating the settlement of the estates of decedents. Such inventory, with the appraisement of the property therein described, must be recorded by the §§ 1774-1776 GUARDIAN AND WARD. 8ti8 clerk cf the court !n a proper book kept In his office for that purpose. Whenever any other property of the estate of any ward is discovered, not included in the inventory of the estate already returned, and vi'henever any other property has been succeeded to, or acquired by any ward, or for his benefit, the like proceedings must be had for the return and appraisement thereof that are herein pro- vided in relation to the first inventory and return. En. March 11, 1872. Am'd. 1880, 68. Cal. Rep. CIt. 109, 253; 109, 254. Where joint guardians: Post, sec. 1775. Appraisers — generally: Ante, sec. 1444. Account may be received at chamibers: Ante, sec. 166. § 1774. Settlements of guardians. The guardian must, upon the expiration of a year from the time of his ap- pointment, and as often thereafter as he may be required, present his account to the court for settlement and allow- ance; provided, that no final account of any Insane person who is or has been during his guardianship confined in a state hospital in this state, shall be settled or allowed unless notice of the settlement of said account shall have been first given to the secretary of the state commission In lunacy. En. March 11, 1872. Am'd. 1880, 68; 1905, 228. Cal. Rep. Clt. 57, 191; 109, 254; 121, 472; 183, 448; 133, 449. 8 1775. Allowance of accounts of Joint guardians. When an account Is rendered by two or more joint guardians, the court may, in Its discretion, allow the same upon the oath of any of them. En. March 11, 1872. Am'd 1880, 68. § 1776. Expenses and compensation of guardians. Every guardian must be allowed the amount of his reasonable expenses Incurred In the execution of his trust, and he must also have such compensation for his services as the court in which his accounts are settled deems Just and rea- sonable. En. March 11, 1872. Cal. Rep. Clt. 73, 641. Expenses Incurred — advances made: Ante, see. 1771. ARTICLE IV. THE SALE OF PROPERTY AND DISPOSITION OF THE PRO- CEEDS. 1777. May sell property in certain cases. 1 1778. Sale of real estate to be made upon order of court. I 1779. Application of proceeds of sales. I 1780. Investment of proceeds of sales g 1781. Order for Bale, how obtained. <69 GUARDIAN AND WARD. g§ 1717-1780 § 1782. Notice to next of kin, how given. § 1783. Copy of order to be served, published, or consent filed. I 1784. Hearing of application. § 1785. Who may be examined on such hearing. I 1786. Costs to be awarted, to whom. § 1787. Order of sale, to specify what. § 1788. Bond before selling. § 1789. All proceedings for sales of property by guardians to conform to chapter seven of this title. § 1790. Limit of order of sale. 5 1791. Conditions of sale.s of real estate of minor heirs. Bond and mortgage to be given for deferred payments. § 1792. Court may order the Investment of money of the ward. § 1777. May sell property in certain cases. When the Income of an estate under guardianship is insufficient to maintain the ward and his family, or to maintain and educate the ward when a minor, his gnardian may sell his real or personal estate, or mortgage the real estate for that purpose, upon obtaining an order therefor. En. March 11, 1872. Am'd. 1900-1, 84. Cal. Rep. Cit. 83, 350; 83, 356; 83, 357; 120, 428; 134, 116. Power of guardian — to sell property: Ante, sec. 1768. § 1778. Sale of real estate to be made upon order of court. When it appears to the satisfaction of the court, upon the petition of the guardian, that for the benefit of his ward his real estate, or some part thereof, should be sold, and the proceeds thereof put out at interest, or in- vested in some productive stock, or in the improvement or security of any other real estate of the ward, his guardian may sell the same for such purpose, upon obtaining an order therefor. En. March 11, 1872. Cal. Rep. Cit. 83, 356; 83, 357; 120, 428. Order for sale of properly: Ante, sec. 1768. § 1779. Application of proceeds of sales. If the estate is sold for the purposes mentioned in this article, the guar- dian must apply the proceeds of the sale to such purposes, as far as necessary, and put out the residue, if any, on interest, or invest it in the best manner in his power, until the capital is wanted for the maintenance of the ward and his family, or the education of his children, or for the edu- cation of the ward when a minor, in which case the capital may be used for that purpose, as far as may be nec- essary, in like manner as if it had been pereonal estate of the ward. En. March 11, 1872. § 1780. Investment of proceeds of sales. If the estate is sold for the purpose of putting out or investing the pro- ceeds, the guardian must make the investment according §§ 17S1-17S4 GUARDIAN AND WARD. «TO to his best judgment, or in pursuance of any order that may be made by the court. En. March 11, 1872. Am'd. 1880, G8. § 1781. Order for sale, how obtained. To obtain an or- der for such sale, the guardian must present to the court in which he was appointed guardian a verified petition therefor, setting forth the condition of the estate of his ward, and the facts and circumstances on which the peti- tion is founded, tending to show the necessity or expedi- ency of a sale. En. March 11, 1872. Am'd. 1880, G9. Cal. Rep. Cit. 83. 346; 83, 350; 83, 355; 83, 356; 83, 3o7; 120, 424. § 1782. Notice to next of kin, how given. It it appear to the court, or a .iudge thereof, from the petition, that it is necessary or would be beneficial to the ward that the real estate, or some part of it, should be sold, or that the real and personal estate should be sold, the court must there- upon make an order directing the next of kin of the ward, and all persons interested in the estate, to appear before the court, at a time and place therein specified, not less than four nor more than eight weeks from the time ol making such order, to show cause why an order should not be granted for the sale of such estate. If it appear that it is necessary or would be beneficial to the ward to sell the personal estate, or some part of it, the court must order the sale to be made. En. March 11, 1872. Am'd. 1880, 69. Cal. Rep. Cit. 97, 363. § 1783. Copy of order to be served, published, or con- sent filed. A copy of the order must be personally served on the next of kin of the ward, and on all persons inter- ested in the estate, at least fourteen days before the hear- ing of the petition, or must be published at least once a week for three successive weeks in a newspaper printed in the county, or if there be none printed in the county, then in such newspaper as may be specified by the court in the order. If written consent to making the order of sale is subscribed by all persons interested therein, and the next of kin, notice need not be served or published. En. March 11, 1872. Am'd. 1880, G9. Cal. Rep. Cit. 97, 363; 120, 425. Notice: Compare ante, sec. 1539. § 1784. Hearing of application. The court, at the time ftnd place appointed in the order, or such other time to en GUARDIAN AND "WARD. §§ 1785-1789 which the hearing is postponed, upon proof of the service or publication of the order, must hear and examine the proofs and allegations of the petitioner, and of the next of kin, and of all other persons interested in the estate who oppose the application. En. March 11, 1872. Am'd. 188U, 69. Cal. Rep.- Cit. 97, 363. Compare: Ante, sec. 1540. § 1785. Who may be examined on such hearing. On the hearing, the guardian may be examined on oath, and wit- nesses may be produced and examined by either party, and process to compel their attendance and testimony may be issued by the court, in the same manner and with like effect as in other cases provided for in this title. En. March 11, 1872. Am'd. 1880, 69. Compelling attendance and testimony of witnesses: Ante, sec. 1305; post, 1985 et seq. § 1786. Costs to be awarded, to whom. If any person appears and objects to the granting of any order prayed for under the provisions of this article, and it appears to the court that either the petition or the objection thereto is sustained, the court may, in granting or refusing the order, award costs to the party prevailing, and enforce the payment thereof. En. March 11, 1872. § 1737. Order of sale, to specify what. If, after a full examination, it appears necessary, or for the benefit of the ward, that his real estate, or some part thereof, should be sold, the court may grant an order therefor, specifying therein the causes or reasons why thie sale is necessary or beneficial^ and may, if the same has been prayed for in the petition, order such sale to be made either at public or private sale. En. March 11, 18/2. § 1788. Bond before selling. Every guardian authorized to sell real estate must, before the sale, give bond to the ward, with sufficient surety, to be approved by the court, or a judge thereof, with condition to sell the same in the manner, and to account for the proceeds of the sale as provided for in this chapter, and chapter seven of this title. En. March 11, 1872. Am'd. 1880, 69. Cal. Rep. Cit. 83, 357. Bond on sale of realty: Ante, sec. 1389. § 1789. All proceedings for sales of property by guar- dians to conform to chapter seven of this title. All the §1 1790-1792 GUARDIAN AND WARD. 672 proceedings under petition of guardians for sales of prop- erty of their wards, giving notice, and the hearing of such petitions, granting or refusing the order of sale, directing the sale to be made at public or private sale, reselling the same property, return of sale, and application for confirma- tion thereof, notice and hearing of such application, making orders rejecting or confirming sales and reports of sales, ordering and making conveyances of property sold, ac- counting and the settlement of accounts, must be had and made as required by the provisions of this title concerning estates of decedents, unless otherwise specially provided in this chapter. En. March 11, 1872. Cal. Rep. Cit. 52, 637; 55, 142; 83, 355; 109, 254; 115, 205; 120, 425. Settlement of accounts after letters revoked: Ante, sec. 1629. § 1790. Limit of order of sale. No order of sale, granted in pursuance of this article, continues in force more than one year after granting the same, without a sale being had. En. March 11, 1872. §, 1791. Conditions of sales of real estate of minor heirs. Bond and mortgage to be given for deferred payments. All sales of real estate of wards must be for cash, or for part cash and part deferred payments, the credit in no case to exceed three years from date of sale, as in the discretion of the court is most beneficial to the ward. Guardians making sales must demand and receive from the pur- chasers, in case of deferred payments, notes, and a mort- gage on the real estate sold, with such additional security as the court deems necessary and sufficient to .secure the prompt payment of the amounts so deferred, and the in- terest thereon. En. March 11, 1872. Am'd, 1880, 70. Cal. Rep. Cit. 120, 425. § 1792. Court may order the investment of money of the ward. The court, on the application of a guardian, or any person interested in the estate of any ward, after such notice to persons interested therein as the court shall direct, may authorize and require the guardian to invest the proceeds of sales and any other of his ward's money in his hands, in real estate, or in any other manner most to the interest of all concerned therein, and the court may make such other orders and give such directions as are needful for the management, investment, and disposition e73 GUARDIAN AND WARD. 5§ 1793-n'J5 of the estate and effects, as circumstances require. En. March 11, 1872. Am'd. 1880, 70. Cal. Rep. Cit. 55, 141; 117, 646; 121, 472; 133, 389; 133, 390. ARTICLE V. NONRESIDENT GUARDIANS AND WARD. § 1793. Guardians of nonresident persons. § 1794. Powers and duties of guardians appointed under prect'ding sec- tion. § 1795. Sucli guardians to give bonds. § 179fi. To what guardianship shall extend. § 1797. Rfmoval of nonresident ward's property. § 1708. Proceedings on such removal. § 1799. Discharge of person in possession. § 1793. Guardians of nonresident persons. When a per- son liable to be put unler guardianship, according to the provisions of this chapter, resides without this state and has estate therein, any friend of such person, or any one interested in his estate, in expectancy or otherwise, may apply to the superior court of any county in which there is any estate of such absent person, for the appointment of a guardian, and if, after notice given to all interested, in such manner as such court orders by publication or other- wise, and a full hearing and examination, it appears proper, a guardian for such absent person may be appointed. En. March 11, 1872. Am'd. 1880, 70. Cal. Rep. Cit. Subd. 1—67, 93. Subd. 4—67, 93. Foreign guardian: Sec. 1913. Guardian, appearance by, etc.: Ante, sees. 372, 373, 1722, 1759, 1769. Judge may appoint guardians and issue letters of guard- ianship at chambers: Sec. 166. § 1794. Powers and duties of guardians appointed under preceding section. Every guardian, appointed under the preceding section, has the same powers and performs the same duties, with respect to the estate of the ward found within this state, and with respect to the person of the ward, if he shall come to reside therein, as are prescribed with respect to any other guardian appointed under this chapter. En. March 11, 1872. § 1795. Such guardians to give bonds. Every guardian must give bond to the ward, in the manner and with the like conditions as hereinbefore provided for other guard- ians, except that the provisions respecting the inventory, the disposal of the estate and effects, and the account to Code Civil Proc— 43. §§ 1796-1798 GUARDIAN AND WARD. tU be rendered by the guardian, must be confined to such estate and effects as come to his hands in this state. En. March 11, 1872. Bond, etc.: Ante, sec. 1754. § 1796. To what guardianship shall extend. The guard- ianship which is first lawfully granted to any person residing" without this state extends to all the estate of the ward within this state, and excludes the jurisdiction of the court of every other county. En. March 11, 1872. Am'd. 1880, 70. § 1797. Removal of nonresident ward's property. When the guardian and ward are both nonrc^sidents, and the ward is entitled to property in this state, which may be removed to another slate or foreign country without conflict with any restriction or limitation thereupon, or impairing the right of the ward thereto, such property may be removed to the state or foreign country of the residence of the ward, upon the application of the guardian to the superior court of the county in which the estate of the ward, or the principal part thereof, is situated. En. March 11, 1872. Am'd. 1880, 70. § 1798. Proceedings on such removal. The application must be made upon ten days' notice to the resident exec- utor, administrator, or guardian, if there be such, and upon such application the nonresident guardian must produce and file a certificate, under the hand of the clerk and seal of the court, from which his appointment was derived, showing: 1. A transcript of the record of his appointment. 2. That he has entered upon the discharge of his duties. 3. That he is entitled, by the laws of the state of his appointment, to the possession of the estate of the ward; or, must produce and file a certificate, under the hand and seal of the clerk of the court having jurisdiction in the country of his residence, of the estates of persons under guardianship, or of the highest court of such country, at- tested by a minister, consul, or vice-consul of the United States, resident in such country, that, by the laws of such country, the applicant is entitled to the custody of the estate of his ward, without the appointment of any court. Upon such application, unless good cause to the contrary is shown, the court must make an order gi'anting to such guardian leave to take and remove the property of his ward to the state or place of his residence, which is author- 675 GUARDIAN AND W AKD. §§ 1799-180H ity toTiim to sue for iuvl rycoivc Tro same in his own name, for the use and bs^ncAt of iiia v> iird. En. March 11, 1872. Am'd. 1S73-4, 378; 1880, 71. § 1799. Discharce cf person in possession. Such order is a discharge of the executor, administrator, local guard- Ian, or other person in whose possession the property may be at the time the order is made, on filing with the clerk of the court a receipt therefor of a foreign guardian of sr.ch absent ward, and transmitting a duplicate receipt, or a certified copy of such receipt, to the court from which such nonresident guardian received his appointment. En, March 11, 1872. Am'd. 1880, 71; 1895, 28. ARTICLE VI. GENERAL AND MISCELLANEOUS PROVISIONS. § 1800. E.xamlnatlon of persons suspected of defrauding wards or con- cealing property. § 1801. Removal and resignation of guardian, and surrender of estate. § 1802. Guardianship, how terminated. § 1S03. New bond, when required. § 1S04. Guardian's bond to be filed. Action on. § 1805. Limitation of actions on guardian's bond. § IS06. I^iniitatlon of actions for the recovery of property sold. § 1807. More than one guardian of a person may be appointed. § 1808. Orcier appointing guardian, how entered. § 1809. Provisions of section ten hundred and fifty-seven apply to guardians. § 1810. Guardian decreed to make conveyance for Incompetent. § 1800. Examination of persons suspected of defrauding wards or concealing property. Upon complaint made to him by any guardian, ward, creditor, or other person in- terested in the estate or having a prospective interest therein as heir or otherwise, against anyone suspected of having concealed, embezzled, or conveyed away any of the money, goods, or effects, or an instrument in writing be- longing to the ward or to his estate, the superior court, or a judge thereof, may cite such suspected person to appear before such court, and may examine and proceed with him on such charge in the manner provided in this title with respect to persons suspected of and jpharged with conceal- ing or embezzling the effects of a decedent. En. March 11, 1872. Am'd. 1880, 71. Cal. Rep. Cit. 94, 349; 133, 136. Embezzlement of property of estate: Ante, sees. 1458 et seq. 1801-1805 GUARDIAN AND WARD. «79 § 1801. Removal and resignation of guardian, and sur- render of estate. When a guardian, appointed either by the testator or a court, becomes insane or otherwise inca- pable of discharging his trust or unsuitable therefor, or has wasted or mismanaged the estate, or failed for thirty days to render an account or make a return, the superior court may, upon such notice to the guardian as the court may require, remove him and compel him to surrender the estate of the ward to the person found to be lawfully entitled thereto. Every guardian may resign when it appears proper to allow the same; and upon the resigna- tion or removal of a guardian, as herein provided, the court may appoint another in the place of the guardian who resigned or was removed. En. March 11, 1872. Am'd. 1880, 71. Cal. Rep. Cit. 66, 241; 66, 242; 74, 425; 128, 219; 143, 229. § 1802. Guardianship, how terminated. The marriage of a minor ward terminates the guardianship of the person of such ward, but not the estate; and the guardian of an Insane or other person may be discharged by the court, when it appears, on the application of the ward or other- wise, that the guardianship is no longer necessary. En. March 11, 1872. Am'd. 1880, 72. Cal. Rep. Cit. 143, 229. § 1803. New bond, when required. The court may re- quire a new bond to be given by a guardian whenever such court deems it necessary, and may discharge the existing sureties from further liability, after due notice given as such court may direct, when It shall appear that no injury can result therefrom to those interested in the estate. En. -March 11, 1872. Am'd. 1880, 72. § 1804. Guardian's bond to be filed. Action on. Every bond given by a guardian must be filed and preserved in the office of the clerk of the superior court of the county, and in case of a breach of a condition thereof, may be prosecuted for the use and benefit of the ward, or of any person interested in the estate. En. March 11, 1872. Am'd. 1880, 72. Suit on bond, party beneficially interested: Ante, sec. 367. § 1805. Limitation of actions on guardian's bond. No action can be maintained against the sureties on any bond given by a guardian, unless it be commenced within three 677 GUARDIAN AND WARD. §§ 1806-lSlO years from the discharge or removal of the guardian; but if, at the time of such discharge, the person entitled to bring such action is under any legal disability to sue, the action may be commenced at any time within three years after such disability is removed. En. March 11, 1872. Cal. Rep. Cit. 121, 474; 14H, 222; 143, 223; 143, 228; 143, 229; 143, 230; 143, 233- 147, 61G. § 1806. Limitation of actions for the recovery of prop- erty sold. No action for the recovery of any estate sold by a guardian can be maintained by the ward, or by any per- son claiming under him, unless it is commenced within three years next after the termination of the guardianship, or, when a legal disability to sue exists by reason of minor- ity or otherwise, at the time when the cause of action accrues, within three years next after the removal thereof. En. March 11, 1872. Cal. Rep. Cit. 66, 111; 70, 373; 93, 107; 118, 392. § 1807. More than one guardian of a person may be appointed. The court, in its discretion, whenever neces- sary, may appoint more than one guardian of any person subject to guardianship, who must give bond and be gov- erned and liable in all respects as a sole guardian. En. March 11, 1872. § 1808. Order appointing guardian, how entered. Any order appointing a guardian, must be entered as and be- come a decree of the court. The provisions of this title relative to the estates of decedents, so far as they relate to the practice in the superior court, apply to proceedings under this chapter. En. March 11, 1872 Am'd. 1880, 72. Cal. Rep. Cit. 83, 355; 109, 254; 143, 228; 143, 234. Chambers, power at: Ante, sees. 166, 176. § 1809. Provisions of section ten hundred and fifty-seven apply to guardians. The provisions of section ten hundred and fifty-seven are hereby declared to apply to guardians appointed by the court, and to the bonds taken or to be taken from such guardians, and to the sureties on such bonds. En. March 11, 1872. § 1810. Guardian decreed to make conveyance for in- competent. When a person who is bound by a contract in writing to convey any real estate shall afterwards and before making the conveyance become and be adjudged to be an incompetent person, the court may make a decree authorizing and directing his guardian to convey such real 5§ 1811-1S13 SOLE TRADEna. SW estate to the person entitled thereto. Su€h decree may be made under the provisions of sections fifteen hundred and ninety-seven to sixteen hundred and seven, both inclusive, of this code, all of which provisions are hereby incorpo- rated in this section; the word incompetent being substi- tuted for the word deceased or decedent and the word guardian being substituted for the word administrator or executor, respectively, wherever sai-d words occur. En. Stats. 1903, 1C6. TITLE XII. OF SOLE TRADERS. § 1811. Who may become sole traders. § 1812. Notice, how given and what to contain. § 1813. Petition, what to contain when filed. § 1814. May have five hundred dollars of community or husband's property. § 1815. Who may oppose it, and how. § 1S16. Trial or hearing. § 1817. Decree, what it must be. § 1818. Oath, copy of order to be recorde'd. § 1819. Rights and liabilities of sole traders. § 1820. Sole trader must maintain her children. § 1821. Husband of sole trader not liable for debta. § 1811. Who may become sole traders. A married woman may become a sole trader by the judgment of the superior court of the county in which she has resided for six months next preceding the application. En. March 11, 1872. Am'd. 1881, 10. § 1812. Notice, how given and what to contain. A per- son intending to make application to become a sole trader must publish notice of such intention in a newspaper pub- lished in the county, or, if none, then in a newspaper published in an adjoining county, once a week for four successive weeks. The notice must specify the day upon which application will be made, the nature and place of the business proposed to be conducted by her, and the name of her husband. En. March 11, 1872. Am'd. 1881, 10. § 1813. Petition, what to contain when filed. Ten days prior to the day named in the notice, the applicant must file a verified petition setting forth: 1. That the application is made in good faith, to enable the applicant to support herself, or herself and others dependent upon her, giving their names and relation; 2. The fact of insufficient support from her husband, and the causes thereof, if known; 679 SOLE TRADERS. i§ 1814-1S18 3. Any other grounds of application which are good causes for a divorce, with the reason why a divorce is not sought; and 4. The nature of the business proposed to be conducted, and the capital to be invested therein, if any, and the sources from which it is derived. En. March 11, 1872. g, 1814. May have five hundred dollars of community or husband's property. The applicant may invest in the busi- ness proposed to be conducted, a sum derived from the community property or of the separate property of the husband, not exceeding five hundred dollars. En. March 11, 1872. Cal. Rep. Clt. 63, 428. § 1815. Who may oppose It, and how. Any creditor of the husband may oppose the application, by filing in the court (prior to the day named in the notice) a written op- position verified, containing either: 1. A specific denial of the truth of any material allega- tion of the petition; or setting forth, 2. That the application is made for the purpose of de- frauding the opponent; or 3. That the application is made to prevent, or will pre- vent him from collecting his debt. En. March 11, 1872. § 1816. Trial or hearing. On the day named in the notice, or on such other day to which the hearing may be postponed by the court, the applicant must make proof of publication of the notice hereinbefore required, and the issues of fact joined, if any, must be tried as In other cases; if no Issues are joined, the court must hear the proofs of the applicant and find the facts in accordance therewith. En. March 11, 1872. § 1817. Decree, what It must be. If the facts found sustain the petition, the court must render judgment au- thorizing the applicant to carry on in her own name and on her own account the business specifiea in the notice and petition. En. March 11, 1872. § 1818. Oath, copy of order to be recorded. The sole trader must make and file with the clerk of the court an aflidavit, in the following form: "I, A. B., do, in the presence of Almighty God, solemnly swear that this application was made in good faith, for §§ 1819-1821 SOI^E TRADERS. «80 the purpose of enabling me to support myself (and any dependent, such as husband, parent, sister, child, or tho like, naming them, if any), and not with any view to de- fraud, delay, or hinder any creditor or creditors of my husband; and that of the moneys so to be used by me In business, not more than five hundred dollars have come either directly or Indirectly from my husband. So help me God." A certified copy of the decree, with this oath Indorsed thereon, must be recorded in the office of the recorder of the county where the biiFiness is to be carried on, in a book to be kept for such purpose. En. March 11, 1872. § 1819. Rights and liabilities of sole traders. When the judgment is made and entered, and a copy thereof, with the affidavit provided for in section one thousand eight hundred and eighteen, duly recorded, the person therein named is entitled to carry on the business specified, in her own name, and the property, revenues, moneys, and credits so by her invested, and the profits thereof, belong ex- clusively to her, and are not liable for any debts of her husband, and she, thereafter, has all the privileges of, and is liable to all legal processes provided for debtors and creditors, and may sue and be sued alone without being joined with her husband; provided, however, that she shall not be at liberty to carry on said business In any other county than that named In the notice provided for in section one thousand eight hundred and twelve, until she has recorded in sucli other county a copy of said judg- ment and affidavit. En. March 11, 1872. Am'd. 1875-6, 105. Sue and be sued alone: Ante, sec. 370. Husband and wife parties to actions: Ante, sees. 370, 871. § 1820. Sole trader must maintain her children. A mar- ried woman who is adjudged a sole trader is responsible and liable for the maintenance of her minor children. En. March 11, 1872. § 1821. Husband of sole trader not liable for debts. The husband of a sole trader is not liable for any debts con- tracted by her in the course oi: her sole trader's business, unless contracted upon his written consent. En. March, 11. 1872. FKOCEEDlNGd IN INSOLVENCY, g 1S22 TITLE XTII. OF PROCEEDINGS IN INSOLVENCY. § 1822. Statutes In relation to. continued in force. § 1822. Statutes In relation to,, continued in force. Noth- ing in this code affects any of the provisions of "an act for the relief of insolvent debtors and protection of creditors," approved May 4, 1852, or of the acts amendatory thereof, approved respectively March 12. 1858, April 27, 18G0, and April 27, 1863; but such acts are recognized as continuing in force notwithstanding the provisions of this code. En. March 11, 1872. PART IV. OF EVIDENCE. General Definitions and Divisions, §§ 1823-1839. Title I. Of General Principles, §§ 1844-1870. II. Kinds and Degrees of Evidence, §§ 1875-1978. III. Of the Production of Evidence, §§ 1981-2054. IV. Effect of Evidence, § 2061. V. Of the Rights and Duties of Witnesses, §§ 2064- 2070. VI. Evidence in Particular Cases, and Miscellaneous and General Provisions, §§ 2070-2104. OF EVIDENCE. GENERAL DEFINITIONS AND DIVISIONS. § 1823. Definition of evidence. § 1824. Definition of proof. § 1825. Defxr.ition of law of evidence § 1S26. The degree of certainty required to establish facts. § 1S27. Pour kinds of eviuence specified. § 1S28. Several degrees of evidence specified. § 1829. Primary evidence defined. § 1830. Secondary evidence defined. § 1S31. Direct evidence defined. § 1832. Indirect evrdence defined. § 1833. Prima facie evidence defined. § 18.34. Partial evidence defined. § 1835. Satisfactory evidence defined. § 18.36. Indisjiensable evidence defined. § 1S37. Conclusive evidence dcfinc-.l. § 1838. Cumulative evidence defined. § 1839. Corroborative evidence defined. § 1823. Definition of evidence. Judicial evidence is the means, sanctioned by law, of ascertaining in a judicial proceeding the truth respecting a question of fact. En. March 11, 1872. Evidence, law of: Post, sec. 1825; kinds- of: Post, sec. 1827; degrees of: Post, sees. 1S2S et seq.; relevancy of: Post. sees. 18G3, 1870; production of: Post, sec. 1825, subd 3; value and effect of: Post, sec. 1825, subd. 5. (C82) 883 EVIDENCE. S§ 1824-1827 § 1824. Definition of proof. Proof is the effect of evi- dence, the establishment of a fact by evidence. En. March 11, 1872. Proof, degree required: Post, sec. 182G; order of: Ante, sec. 607, post, sec. 2042; extent of: Post, sees. 1867, ISoJ; limits of: Post, sees. 1868, 1870; burden of: Post, sees. 1869, 1981. § 1825. Definition of law of evidence. The law of evi- dence, which is the subject of this part of the code, is a collection of general rules established by law: 1. For declaring what is to be taken as true without proof; 2. For declaring the presumpt'ons of law, both those which are disputable and those which are conclusive; and, 3. For the production of legal evidence; 4. For the exclusion of whatever is not legal; 5. For determining in certain cases, the value and effect of evidence. En. March 11, 1872. Subd. 2. Presumptions: Post, sees. 1959, lCGl-1963, and notes. Subd. 3. Production of evidence: Post, sees. 1981-2054. Subd. 4. Exclusion of evidence: Post, sees. 1867, 1868. Subd. 5. Value and effect of evidence: Post, sec. 2061. § 1826. The degree of certainty required to establish facts. The law does not require demonstrations; that is, such a degree of proof as, excluding possibility of error, produces absolute certainty; because such proof is rarely possible. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. En. March 11, 1872. Cal. Rep. Cit. 80, 582; 80, 584; 80, 603; 130, 8; 130, 39; 139, 395; 141, 549; 143, 398. Proof: Ante, sec. 1824, § 1827. Four kinds of evidence specified. There are four kinds of evidence: 1. The knowledge of the court; 2. The testimony of witnesses; 3. Writings; 4. Other material objects presented to the senses. En. March 11, 1872. Cal. Rep. Cit. 61, 404; 107, 209. §§ 1828-1832 EVIDENCE. 684 Subd. 1. Knowledge of the court: Post, sec. 1875. Subd. 2. Witnesses: Post, sees. 1878-1884. Subd. 3. Writings: Post, sees. 1887-1951. Subd. 4. Other material objects: Post, sec. 1954. § 1828. Several degrees of evidence specified. There are several degrees of evidence: 1. Primary and secondary. 2. Direct and indirect. 3. Prima facie, partial, satisfactory, indispensable, and conclusive. En. March 11, 1872. Am'd. 1873-4, 379. § 1829. Primary evidence defined. Primary evidence is that kind of evidence which, under every possible circum- stance, affords the greatest certainty of the fact in question. Thus, a written instrument is itself the best possible evidence of Its existence and contents. En. March II, 1872. Am'd. 1873-4, 379. Cal. Rep. Git. 54, 557. § 1830. Secondary evidence defined. Secondary evi- dence is that which is inferior to primary. Thus, a copy of an instrument, or oral evidence of its contents, is second- ary evidence of the instrument and contents. En. March 11, 1872. Am'd. 1873-4, 379. Contents of a writing, evidence of: Post, sees. 1855, 1856. § 1831. Direct evidence defined. Direct evidence is that which proves the fact in dispute directly, without an inference or presumption, and which in itself, if true, con- clusively establishes that fact. For example: If the fact in dispute be an agreement, the evidence of a witness who was present, and witnessed the making of it, is direct. En. March 11, 1872. Cal. Rep. Cit. 143, 398. § 1832. Indirect evidence defined. Indirect evidence is that which tends to establish the fact in dispute by prov- ing another, and which, though true, does not of itself conclusively establish that fact, but which affords an inference or presumption of its existence. Fot example: a witness proves an admission of the party to the fact in 685 EVIDENCE. §§ 1833-1837 dispute. This proves a fact, from which the fact in dis- pute is inferred. En. March 11, 1872. Cal. Rep. Cit. 106, 193; 141, 63; 141, 398; 146, 121. Indirect evidence: Post, sees. 1957-19G3. § 1833. Prima facie evidence defined. Prima facie evi- dence is that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence. For example: the certificate of a recording officer is prima facie evidence of a record, but it may afterward be re- jected upon proof that there is no such record. En. March 11, 1872. Am'd. 1873-4, 379. Cal. Rep. Cit. 70, 570; 75, 449; 83, 272. Disputable presumption: Post, sec. 1963. § 1834. Partial evidence defined. Partial evidence is that which goes to establish a detached fact, in a series tending to the fact in dispute. It may be recei"\»ed, subject to be rejected as incompetent, unless connected with the fact in dispute by proof of other facts. For example: on an issue of title to real property, evidence of th.e con- tinued possession of a remote occupant is partial, for it is of a detached fact, which may or may not be afterwards connected with the fact in dispute. En. March 11, 1872. Connected with the fact in dispute: Post, sec. 1868. § 1835. Satisfactory evidence defined. That evidence is deemed satisfactory which ordinarily produces moral certainty or conviction in an unprejudiced mind. Such evidence alone will justify a verdict. Evidence less than this is denominated slight evidence. En. March 11, 1872. Cal. Rep. Cit. 72, 527; 76, 108; 79, 406; 80, 132; 80, 584; 94, 350; 94, 412; 105, 522; 132, 366; 132, 620; 133, 166; 136, 414; 139, 395; 140, 399; 141, 549. Satisfactory evidence, to justify verdict: Post, sec. 2061, subd. 5. § 1836. Indispensable evidence defined. Indispensable evidence is that without which a particular fact cannot be proved. En. March 11, 1872. Indispensable evidence: Sees. 1967-1974. § 1837. Conclusive evidence defined. Conclusive or un- answerable evidence is that which the law does not permit §§ 1S38-1844 GENERAL PUINCIPLES. «!« to be contradicted. For example, the record of a court of competent jurisdiction cannot be contradicted by the par- ties to it. En. March 11, 1872. Cal. Rep. Cit. 83, 272. Conclusive evidence: Post, sees. 1908, 1962, 1978. § 1838. Cumulative evidence defined. Cumulative evi- dence is additional evidence of the same character to the same point. En. March 11, 1872. Cal. Rep. Cit. 92, 208. § 1839. Corroborative evidence defined. Corroborative evidence is additional evidence of a different character, to the same point. En. March 11, 1872. Cal. Rep. Cit. Ill, 14. TITLE I. OF THE GEISTERAL PRINCIPLES OF EVIDENCE. § 1S44. One witness suflicicnt to prove a fact. § 1845. Testimony confined to personal knowledge. § 1S46. Testimony to be in presence of persons affected. § 1847. Witness presumed to speak the truth. § 1848. One person not affected by acts of another. § 1849. Declarations of predecessor in title evidence. § 1850. Declarations which are a part of the transaction. § 1851. Evidence relating to third person. § 1852. Declaration of decedent evidence of pedigree. § 1853. Declaration of decedent evidence against his successor In In- terest. § 1854. When part of a transaction proved, the whole is admissible. § 1S55. Contents of writing, how proved. § 1856. An agreement reduced to writing deemed the whole. § 1857. Construction of language relates to place where used. § 1858. Construction of statutes an-J instruments, general rule. § 1859. The Intention of the legislature or parties. § lSi;0. The circumstances to be considered. § IStil. Terms to be constiued in their general acceptation. § 1862. Written words ccntrol those printed in a blank form. § 1863. Persons skilled may testify to decipher characters. § 18G4. Of two constructions, which preferred. § 1SC5. A written instrument construed as understood by parties. § 1SB6. Construction in favor of natural right preferred. § 1S67. Material allegations only to be proved. § 1868. Evidence confined to mateilal allegations. § 1869. Affirmative only to be proved. I 1870. Facts which may be proved on trial. § 1844. One witness sufficient to prove a fact. The direct evidence of one witness who is entitled to full credit 687 GENERAL miNCIPLES. §§ lS45-lsn is sufQcient for proof of any fact, except, perjury and trea- son. En. March 11, 1872. Cal. Rep. Cit. 62, 310; 125, 37. Witness, definition; Post, sec. 1878; v/itne.ss, compe- tency: Post, sees. 1879 et seq. ; two witnesses for lost or de- stroyed will: Ante, sec. 1339; perjury and treason, more than one witness: Post, sec. 1063. § 1845. Testimony confined to persona! knoY/lsdge. A witness can testify of those facts only v/hich he knows of his own knowledge; that is, which are derived from his own perceptions, except in those few express cases in which his opinions or inferenoes, or the declarations of others, are admissible. En. March 11, 1872. Cal. Rep. Cit. 85, 584; 142, 111; 145, 152. Opinions, inferences, declarations: See sec. 1S70. § 1846. Testimony to be in presence of persons affected. A v/itness can be heard only upon oath or a"irraation, and upon a trial he can be heard only in the presence and subject to the examination of all the parties, if they choose to attend and examine. En. March 11, 1872. Cal. Rep. Cit. 87. 113. Oath or affirmation, administration of: Post, sees. 2093- 2097. Examination of witnesses: Post, sees. 2042-2054. § 1847. Witness presumed to speak the truth. A wit- ness is presumed to speak the truth. This presumption, however, may be repelled by the manner in which he testi- fies, by the character of his testiniony, or by evidence af- fectius his character lor truth, honesty, or integrity, or his motives, or by contradictory evidence; and the jury are the exclusive judges of his credibility. En. March 11, 1872. Cal. Rep. Cit. 50, 235; 60, 413; 65, 551; 86, 35; 106, 93; 121, 669; 123, 409; 133, 10; 134, 540; 141, 612; 143, 127; 143, 640. Evidence of good character: Post, sec. 2053. Impeachment of witness: Post, sec. 2052. Value of evidence: Post, sec. 20G1. Presumption repelled, m-aaner of testifying: Post, sec. 2061, subd. 2; character of testimony: Post, sec. 2061, S§ 1848-18S2 GENERAL, PRINCIPLES. 888 Bubd. 3; impeaching credit: Post, sees. 2049, 2051, 2052; contradictory evidence: Post, sees. 2049, 2051. Jury exclusive judges of credibility: Post, sec. 2061. § 1848. One person not affected by acts of another. The rights of a party cannot be prejudiced by the declaration, act, or omission of another, except by virtue of a particu- lar relation between them; therefore, proceedings against one cannot affect another. En. March 11, 1872. Am'd. 1873-4, 380. Cal. Rep. Cit. 146, 529. Books, entries in: Post, sec. 1946. Declaration, etc., of another, when admissible: Sees. 1849-1853; declarations of decedents: Post, sec. 1870; I)artner, agent, etc.: Post, sec. 1870, subd. 5. § 1849. Declarations of predecessor in title evidence. Where, however, one derives title to real property from another, the declaration, act, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. En. March 11, 1872. Cal. Rep. Cit. 50, 479; 52, 349; 60, 503; 60, 510; 60, 511; 63, 16; 70, 313; 70, 315; 70, 318; 79, 413; 93, 96; 106, 384; 109, 670; 120, 126; 121, 52; 121, 594; 145, 774. § 1850. Declarations which are a part of the transac- tion. Where, also, the declaration, act, or omission forms part of a transaction, which is itself the fact in dispute, or evidence of that fact, such declaration, act, or omission is evidence, as part of the transaction. En. March 11, 1872. Cal. Rep. Cit. 58, 26; 58, 158; 62, 310; 63, 16; 79, 311; 99, 73; 106, 384; 124, 659; 133, 136; 139, 431; 140, 456; 145, 690; 145, 774. Declarations before others: Sec. 1870, subd. 3; writing^ evidence to explain: Sec. 1860. § 1851. Evidence relating to third person. And where the question in dispute between the parties is the obliga- tion or duty of a third person, whatever would be the evi- dence for or against such person is prima facie evidence between the parties. En. March 11, 1872. Am'd. 1873-4,, S80. Cal, Rep. Cit. 76, 5; 145, 774. § 1852. Declaration of decedent evidence of pedigree. The declaration, act, or omission of a member of a fam- 689 GEXERAL, PRINCiri.ES. §§ 18a3-l&.5 ily, who is a decedent, or out of the jurisdiction, is also admissible as evidence of corhmon reputation, in cases where, on questions of pedigree, such reputation is admis- sible. En. March 11, 1872. Cal. Rep. Cit. 124, 661; 128, 554; 135, 386; 135, 388; 140, 459; 145, 774. Declaration of decedent: Post, sec. 1870, subd. 4. Common reputation on questions of pedigree, etc.: Post, sec. 1870, subd. 11. § 1853. Declaration of decedent evidence against his successor in interest. The declaration, act, or omission of a decedent, having sufficient knowledge of the subject, against his pecuniary interest, is also admissible as evi- dence to that extent against his successor in interest. En. March 11, 1872. Cal. Rep. Cit. 121, 594; 126, 146; 136, 424; 140, 456; 141, 60; 145, 774. Decedent's declaration against interest: Post, sec. 1870, .5 ily, who is a decedent, or out of the jurisdiction, is also admissible as evidence of common reputation, in cases where, on questions of pedigree, such reputation is admis- Bible. En. March 11, 1872. Cal. Rep. Cit. 124, 661; 128, 554; 135, 386; 135, 388; 140, 459; 145, 774. Declaration of decedent: Post, sec. 1870, subd. 4. Common reputation on questions of pedigree, etc.: Post, sec. 1870, subd. 11. § 1853. Declaration of decedent evidence against his successor in interest. The declaration, act, or omission of a decedent, having sufhcienL knowledge of the subject, against his pecuniary interest, is also admissible as evi- dence to that extent against his successor in interest. En. March 11, 1872. Cal. Rep. Cit. 121, 594; 126, 146; 136, 424; 140, 4.56; 141, 60; 145, 774. Decedent's declaration against interest: Post, sec. 1870, subd. 4; entries and other writings: Post, sec. 1946. § 1854. When part of a transaction proved, the whole is admissible. When part of an act, declaration, con- versation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing, which is necessary to make it understood, may also be given in evidence. En. March 11, 1872. Cal. Rep. CiL. 68, 14; 110, 418; 118, 135; 135, 82; 145, 214. § 1855. Contents of writing, how proved. There can be no evidence of the contents of a writing, other than the writing itself, except in the following oases: 1. When the original has been lost or destroyed; in which case proof of the loss or destruction must first be made. 2. When the original is in the possession of the party against whom the evidence is offered, and he fails to pro- duce it after reasonable notice. 3. When the original is a record or other document in the custody of a public officer. Code avll Proc.— 44. I 1856 GENERA I. rniNCIPLES. AN 4. When the original has been recorded, and a certified copy of the record is made evidence by this code or other statute. 5. When the original consists of uumorous accounts or other documents, which cunnct be examined in court with- out great loss of lime, and the evidence sought from them is only the general result of the whole. In the cases mentioned in subdivisions three and four, a copy of the original or of the record must be produced; in those mentioned in subdivisions one and two, either a copy or oral evidence of the contents. En. March 11, 1872. Am'd. 1873-4, 380. Cal. Rep. Cit. 51,201; 59,506; 65,373; 69,495; 70,16; 89, 621; 89, 622; 113, 299; 124, 446. Subd. 4—52, 186; 59, 506. Subd. 5—122, 497; 137, 176; 142, 189. Prao. Act, sec. 447. En. April 29, 1851. Contents of writing: Post, sees. 1937, 1969. Original in possession of opponent, notice to produce: Post, sees. 1938, 1939. Public writings generally: Post, sec. 1892-1926. Affidavits: Post, sees. 2009 et seq. Subd. 4. Certified copies of records: See post, sees. 1919 et seq. § 1S56. An agreement reduced to writing deemed the whole. When the terms of an agreement have been re- duced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives, or succes- sors in interest, no evidence of the terms of the agreement other than the contents of the writing, except in the follow- ing cases: 1. Where a misiake or imperfection of the writing is put in issue by the pleading; 2. Where the validity of the agreement is the fact in dispute. But this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in section eighteen hundred and sixty, or to explain an extrinsic ambiguity, or to es- tablish illegality or fraud. The term agreement includes deeds and wills, as well as contracts between parties. En. March 11, 1872. ^■31 GENERAL PRINCIPLES. §§ 1857-1859 Cal. Rep. Cit. 48.99; 89, C21; 95,570; 97,387; 104,109; 104, 111; 104, 118; 104, 121; 112, 51; 117, 211; 121, 520; 124, 446; 129, 375; 135, 29: 144, 691; 146, f)94; 147, 318; 147, 325; 147, 327. Subd. 1—137, 75. Subd. 2—137, 100; 141, 228. Writing supersedes oral negotiations: Civ. Code, sec. 11)25; parol evidence to vary or contradict written agree- ment: Civ. Code, sec. 1639; fraud, to establisli: See Civ. Code, sec. 1640; mistake or imperfection, to correct: See Civ. Code, sec. 1640; revision and reformation of contracts for fraud or mistake: Civ. Code, sees. 3399-3402; surround- ing circumstances to show: Sec. 18G0. Recitals in document, conclusiveness of: Sec. 1962, subd. 2. Usage, etc: Sec. 1870, subd. 12. Consideration: Sec. 1962, subd. 2. Alterations and erasures: Sec. 19S2. § 1857. Construction of language relates to place where used. The language of a writing is to be interpreted ac- cording to the meaning it bears in the place of its execu- tion, unless the parties have reference to a different place. En. March 11, 1872. Interpretation of contract, lex loci: Civ. Code, sec. 1646. § 1858. Construction of statutes and instruments, gen- eral rule. In the consti'uction of a statute or instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been in- serted; and where there are several provisions or particu- lars, such a construction is, if possible, to be adopted ae will give effect to all. En. March 11, 1872. Cal. Rep. Cit. 65, 464; 74, 67; 107. 354; 108, 655; 110, 396; 146, 696. Construction, generally: Post, sec. 1859; giving effect to all: Civ. Code, sec. 1641. Interpretation which gives effect preferred: Civ. Code, sec. 3541. § 1859. The intention of the legislature or parties. Iq the construction of a statute, the intention of the legis- lature, and in the construction of the instrument, the in- §!; ISfiO-lseS GKNKRAI- PRTNriPI.ES. W2 tention of the parties, is to he pursued if possible; and wlien a gfrnoral and particular provision are inconsistent, the latter is i»aiaraount to the former. So a particular in- tent will control a general one, that is inconsistent with it. P:u. March U, 1872. Cal. Rep. Cit. 68, 489; 74, 67; 135, 180. Words giving joint authority: Sec. 15, ante. Construc- tion of this code: Sees. 4-18, ante. Statutes in derogation of common law: Ante, sec. 4. § 1860. The circumstances to be considered. For the proper consi ruction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be sliown, so that the judge be placed in the position of those whor.e language he is to interpret. En. March 11, 1872. Cal. Rep. Cit. 88, 553; 97, 387; 107, 600; 109, 226; 128, 186; 137,100; 141,452; 147,462. Surrounding cjicumstances may be shown: Civ. Code, sec. 1647; usage: Post, sec. 1870, subd. 12; descriptive part of coiiveyance: Post, sec. 2077. § 1861. Terms to be construed in their general accepta- tion. The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is nevertheless admissible that they have a local, tech- nical, or otherwise peculiar signification, and were so used and under.5too(l in the particular instance, in which case the agreement must be construed accordingly. En. March 11, 1872. Cal. Rep. Cit. 74, 67; 76, 279; 190, 226; 120, 631; 145, 84. Signification of term.s: Compare Civ. Code, sees. 1644, 1645. See, also, sec. 1870, subd. 12, post. § 1862. Written words control those printed in a blank form. When an instrument consists partly of written words and partly of a printed form, and the two are incon- sistent, the former controls the latter. En. March 11, 1872. Cal. Rep. Cit. 135, 176; 135, 177. Compare Civ. Code, sec. 1651. § 1863. Persons skilled may testify to decipher char- acters. When the characters in which an Instrument is 69S GENERAL PRINCIPLES. §§ 1864-18G7 written are difficult to be deciphered, or the language of th.^ instrument is not understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the citaracters or the meaning of the language. En. March 11, 1872. Cal. Rep. Cit. 65, 626. See post, sec. 1870, subds. 9, 10. § 1864. Of two constructions, which preferred. When the terms of an agreement have been intended in a dif- ferent sense by the different parties to it, that sense Is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which Is most favorable to the party in whose favor the provision was made. En. March 11, 1872. Cal. Rep. Cit. 109, 228; 138, 586. Compare Civ. Code, sees. 1649, 1654. § 1865. A written instrument construed as understood by parties. A written notice, as well as every other writ- ing, is to be construed according to the ordinary accepta- tion of Its terms. Thus, a notice to the drawers or in- dorsers of a bill of exchange or promissory note, that it has been protested for want of acceptance or payment, must be held to import that the same has been duly pre- sented for acceptance or payment, and the same refused, and that the holder looks for payment to the person to whom the notice Is given. En. March 11, 1872. Ordinary acceptation: Ante, sec. 1861. Compare Civ. Code, sec. 1644; notice of dishonor: Civ. Code, sec. 3143. § 1866. Construction in favor of natural right preferred. When a statute or instrument Is equally susceptible of two Interpretations, one in favor of natural right and the other against It, the former Is to be adopted. En. March 11, 1872. Cal. Rep. Cit. 91, 353; 96, 578. ( 1867. IVIaterial allegations only to be proved. None but a material allegation need be proved. En. March 11, 1872. CJal. Rep. Cit. 187, 462. §J lSfi8-1870 GKNKRAI. PRINCIPLES. «M Material allegation, defined: Ante, sec. 4G3; not contro- verted: Ante, sec. 462. Material evidence: Post, sec. 1868. § 1868. Evidence confined to material allegations. EvI- -dence must correspond with the substance of the material allegations, and be relevant to the question in dispute. Collateral questions must therefore be avoided. It is, however, within the discretion of the court to permit Inquiry into a collateral fact, when such fax^t is directly connected with the question in dispute, and is essential to its proper determination, or when it affects the credibil- ity of a witness. En. March 11, 1872. Variance: Ante, sees. 469-471. Credibility of witness: Ante, sec. 1847; post, sec. 1870, subd. 16. Material: Ante. sec. 1867. § 1869. Affirmative only to be proved. Each party must prove his own affirmative allegations. Evidence need not be given in support of a negative allegation, except when such negative allegation is an essential part of the state- ment of the right or title on which the cause of action or defense is founded, nor even in such case when the allega- tion is a denial of the existence of a document, the custody of which belongs to the opposite party. En. March 11, 1872. Cal. Rep. Clt. 92, 333; 94, 174; 94, 175; 136, 618; 137, 283 i 140, 421; 140, 430; 140, 431; 140, 439; 140, 440; 145, 460. Burden of proof: Post, sec. 1981. § 1870. Facts which may be proved on trial. In con- formity with the preceding provisions, evidence may be given upon a trial of the following facts: 1. The precise fact in dispute; 2. The act, declaration, or omission of a party, as evi- dence against such party; 3. An act or declaration of another, in the presence and within the observation of a party, and his conduct in rela- tion thereto; 4. The act or declaration, verbal or written, of a de- ceased person in respect to the relationship, birth, mar- riage, or death of any person related by blood or marriage 695 GENERAL PRINCIPLES. S ""• to such deceased person; the act or declaration of a de- ceased person done or made against his interest in respect to his real property; and also in criminal actions, the act or declaration of a dying person, made un-der a sense of impending death, respecting the cause of his death; 5. After proof of a partnership or agency, the act or declaration of a partner or agent of the party, within the scope of the partnership or agency, and during its ex- istence. The same rule applies to the act or declaration ot a joint owner, joint debtor, or other person jointly in- terested with the party; 6. After proof of a conspiracy, the act or declaration of a conspirator against his co-conspirator, and relating to the conspiracy; 7. The act, declaration, or omission forming part of a transaction, as explained in section eighteen hundred antl fifty; 8. The testimony of a witness deceased, or out of the jurisdiction, or unable to testify, given in a former action between the same parties, relating to the same matter; 9. The opinion of a witness respecting the identity or handwriting of a person, when he has knowled-ge of the person or handwriting; his opinion on a question of sci- ence, art, or trade, when he is skilled therein; 10. The opinion of a subscribing witness to a writing, the validity of which is in dispute, respecting the mental sanity of the signer; and the opinion of an intimate ac- quaintance respecting the mental sanity of a person, the reason for the opinion being given; 11. Common reputation existing previous to the con- troTersy, respecting facts of a pu'blic or general interest more than thirty years old, and in cases of pedigree and boundary; 12. Usage, to explain the true character of an act, con- tract, or instrument, where such true character is not otherwise plain; but usage is never admissible, except as an instrument of interpretation; 13. Monuments and inscriptions in public places, as evi- dence of common reputation; and entries in family bibles, or other fam.ily books or charts; engravings on rings, fam- ily portraits, and the like, as evidence of pedigree; 14. The contents of a writing, when oral evidence there- of is admissible; § 1875 KNOWLEDGE OF THE COURT. 699 15. Any other facts from which the facts in issue are piesunietl or are logically inferable; IC. Such facts as serve to show the credibility of a wit- ness, as explained in section eighteen hundred and forty- seven. En. March 11, 1872. Cal. Rep. Cit. 124, 440; 135, 388; 147, 1G9. Subd. 1—133. 478. C-Jbd. 2—78. 28G; 8G, 489; 95, 29G; 13G, 181; 145, 234. Subd. 3—125, 546; 134, 204; 136, 181. Subd. 4— 94, 599; 118. 519; 128. 554; 145, 234. Subd. 5—103, 406; 130, 255; 140, G30. Subd. 6—59. 352; 77, 502 123, 408. Subd. 7—79, 311. Subd. 8—51, 583; 56, 599 64, 22; 66, 672; 73, 608; 80, 85; 80, 254; 98, 131 132, 203. Subd. 9—54, 512; 55, 451; 91, 59; 134, 314 136, 307. Subd. 10—57, 568; 59, 394; 67, 446; 71, 352 77, 149; 79, 384; 92, 565; 94, 414; 100, 583; 101, 345 102, 036; 102. 037; 106. 349; 115, 257; 120, 14; 127, 596 134, 12; 141. 595; 141, .596; 142, 301; 143, 583. Subd. 11 —68, 574; 83. 242; 135. 388; 137. 303. Subd. 12—99, 372; 140, 597; 141, 735. Subd. 13—118, 519. Subd. 14 —89, 622; 124, 446. Subd. 15—139, 123; 143. 398. Subd. 16—107, 159. Offer to compromise: Post, sec. 2078; confession in di- vorce suit: Post, sec. 2079. Subd. 7. Res gestae: Ante, sec. 1860. TITLE II. OF THE KINDS AND DEGREES OF EVIDENCB. Chapter I. Knowledge of the Court, § 1875. II. Witnesses, §§ 1878-1884. III. Writings, §§ 1887-1951. IV. Material Objects Presented to the Senses, Other Than Writings, § 1954. V. Indirect Evidence, Influences and Presump- tions, §§ 1957-1963. VI. Indispensable Evidence, §§ 1967-1974. VII. Conclusive and Unanswerable Evidence, § 1978. CHAPTER I. KNOWLEDGE OF THE COURT. S 1S75. Certain facts of general notoriety assumed to be true. Speci- fication of such facts. § 1875. Certain facts of general notoriety assumed to be true. Specification of su<'i facts. Courts take judicial no- tice of the following facts: 1. The true signification of all Ekig^lish words and phrases, and of all legal expressions; 697 WITNESSEa S 18™ 2. Whatever is established by law; 3. Public and private official acts of the legislative, ex- ecutive, and judicial departments of this state and of the United States; 4. The seals of all the courts of this state and of the United States; 5. The accession to office and the ofTicial signatures and seals of office of the principal officers of government in the legislative, executive, and judicial departments of this state and of the United States; 6. The existence, title, national flag, and seal of every state or sovereign recognized by the executive pov/er ol the United States; 7. The seals of courts of admiralty and maritime juris- diction, and of notaries public; 8. The laws of nature, the measure of time, and the geographical divisions and political history ol the world. In all these cases the court may resort for its aid to appropriate books or documents of reference. En. March 11, 1872. Cal. Rep. Cit. 52, 188; 64, 91; 66, 412; 78, 262; 92, 28U; 101, 283; 103, 329; 104, 290; 105, 574; 146, 608; 147, 524. Subd. 1—122, 519. Subd. 2—59. 55; 88, 105; 99, 579; 108, 158; 114, 581; 115, 447; 117, 623; 130, 6; 131, 225. Subd. 3—79, 697; 86, 211; 113, 256; 113, 257; 114, 581; 117, 623. Subd. 8—61, 404; 86, 211; 113, 625; 137, 216. CHAPTER II. WITNESSES. I 1878. Witnesses defined. S 1879. All persons capable of perceptions and communication may be witnesses. S 1880. Persons who cannot testify. I 1881. Persons In certai.i relations to parties prohibited. S 1882. When privileged persons mubt testify. (Repealed.) {1883. Judge or a juror may be witness. 1884. When an interpreter to be sworn. § 1878. Witnesses defined. A witness is a person whose declaration under oath is received as evidence for any pur- pose, whether such declaration be made on oral examina- tion or by deposition or affidavit. En. March 11, 1872. Cal. Rep. Cit. 82, 464; 92, 485; 132, 201; 145, 723. Compare: Post, sec. 2002. §3 1879, 1880 WITNESSES. 69S Oral examination: Ante, sec. 1846; general rales of: Fost. sees. 2042 et seq. Deposition: Post, sees. 2019-2038. Affidavit: Post, sees. 2009-2015. § 1879. All persons capable of perceptions and communi- cation may be witnesses. All persons, without exception, otherwise than is specified in the next two sections, who, having organs of sense, can perceive, and perceiving, can make known their perceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are ex- cluded; nor those who have been convicted of crime; nor persons on account of their opinions on matters of re- ligious belief; although, in every case, the credibility of the witness may be drawn in question, as provided in sec- tion eighteen hundred and forty-seven. En. March 11, 1872. Cal. Rep. Cit. 47, 126; 60, 413; 64, 270; C4, 271; 70, 54; 71. 378; 71, 550; 72, 458; 82, 464; 104, 4SG; 106, 92; 122, 658; 135, 172; 137, 302; 139, 472; 141, 570; 141, 5Y2. Prac. Act, sec. 391. En. April 29, 1851. Am'd. 18G3, 701. Cal. Rep. Cit. 24, 423. Prac. Act, sec. 392. En. April 29, 1851. Am'd. 1854, 66; 1863, 701. Cal. Rep. Cit. 4, 16; 6, 195; 6, 358; 9, 70; 14, 471; 17, 004; 26, 35; 26, 148. Persons incompetent as witnesses: Post, sees. 18S0-1881. § 1880. Persons who cannot testify. The following per- sons cannot be witnesses: 1. Those who are of unsound mind at the time of their production for examination. 2. Children under ten years of age, who appear Incap- able of receiving just impressions of the facts respecting which they are examined, or of relating them truly. 3. Parties or assignors of parties to an action or pro- ceeding or persons in who.5e behalf an action or proceeding Is prosecuted against an executor or administrator, upon a claim or demand against the estate of a deceased person, as to any matter or fact occurring before the death of such fleoeased person. En. March 11, 1872. Am'd. 1873-4, 381; ISSO. 112. «99 WITNESSES. { 18SI Cal. Rep. Cit. 50, 422; 51, 108; 51, lOJ; 51. 619; 52, 337; 52, 57C; 64, 270; 64, 271; 67, 90; 67, 91; 67, 92; 67, 152; 70, 54; 71, 378; 76, 107; 77, 413; 82, 464; 82, 583; 95, 162; 95, 170; 9C, 487; 96, 488; 98, 549; 106, 93; 106, 94; 111, 469; 122, 057; 124, 30C; 124, 367; 136, 424; 13S, 96; 141, 572; 145, 523; 146, 554. Subd. 2—136, 522; 142, 151; 142, 642. Subd. 3—85, 97; 88, 43; 122, 656; 12:5, 239; 123, 265; 124, 450; 133. 97; 133, 98; 135, 169; 135, 170; 136, 9; 137, 402; 138, 070; 141, 570; 142, 642; 143, 290; 145. 598. Prac. Act, sec. 394. En. April 29, 1851. Am'd. 1854, 66; 1863, 60. Cal. Rep. Cit. 4, 40o; 26, 148; 27, 411. § 1881. Persons in certain relations to parties prohib- ited. There are particular relations in which it is the pol- icy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following cases: 1. A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against rtie other, nor to a criminal action or proceeding for a crime committed by one against the other. 2. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of pro- fessional employment; nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of his employer, concerning any fact the knowledge of which has been acquired in such capacity. 3. A clergyman or priest cannot, without the consent ot the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he be- longs. 4. A licensed physician or surgeon cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient. 5§ 1882-1884 WITNESSES. TOO 5. A public officer cannot be examined as to communi- cations made to him in official confidence, when the public interests would suffer by the disclosure. En. March 11, 1872. Am'd. 1893, 301. Cal. Rep. Cit. 53, 427; 54, 51G; C4, 257; C4, 258; 64, 271; 70, 54; 79, G77; 82, 4G4; 83. 140; 92. 485; 94. 226; 97, 40; 100, 587; 101. 510; 111, 299; 115. 520; 116, 300; 147, 234. Subd. 1—117, 039; 120, 481; 122, 658. Subd. 2—100, 347; 110. 254; 113, 472; 130, 90. Hubd. 4—93, 71; 97, 45; 100, 394; 100, 400; 100. 91; 106, 93; 109. 069; 109. 670; 110, 256; 116, 166; 166; 644; 117, 639; 119, 445; 126, 0; 132, 187; 132, 396; 136, 260; 140, 338. Prac. Act, sec. 395. En. April 29, 1851. Am'd. 1863, 771. Cal. Rep. Cit. 30, 453. Prac. Act, sec. 396. En. April 29, 1851. Prac. Act, sec. 397. En. April 29, 1851, Prac. Act, sec. 398. En. April 29. 1851. Am'd. 1861, 305. Prac. Act, sec. 399. En. April 29, 1851. Husband and wife: See Pen. Code, sec. 1322. § 1882. When privileged persons must testify. (Re- pealed.) En. March 11, 1872. Rep. 1875-6, 105. § 1883. Judge or a juror nnay be witness. The judge himself or any juror may be called as a witness by either party; but in such case it is 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. En. March 11, 1872. Cal. Rep. Cit. 64, 460; 102, 9. Prac. Act, sec. 400. En. April 29, 1851. Justice as witness, transfer of cause: Ante, sec. 833. § 1884. When an interpreter to be sworn. When a wit- ness does not understand and speak the English language, an interpreter must be sworn to interpret for him. Any person, a resident of the proper county, may be sum- moned by any court or judge to appear before such court or judge to act as interpreter in any action or proceeding. The summons must be served and returned in like manner as a subpoena. Any person so summoned, who fails to at- 701 WRITINGS. §§ lSS7-l«;a tend at the time and place named in the summons, is guilty of a contempt. En. March 11, 1872. Cal. Rep. Cit. 108, 11; 132. 201. Prac. Act, sec. 401. En. April 29, 1851. Am'd. 1863, 495. Subpoena: Post, sees. 1985 et seq. Contempt: Ante, sees. 1209 et seq. Acts authorizing appointment of Italian interpreter: Bee post, Appendix, title Interpreters. CHAPTER IIL WRITINGS. Article 1. Writings in Goncral, §§ 1SS7-1889. II Piililic WritinFTS, §§ 1S92-1926. . lU. Private Writings, §§ 1929-1951. ARTICLE I. WRITINGS IN GENERAL,. § 18S7. Writings, public and private. § 18SS. I>iiblic writings defined. § 1883. All otliers private. § 1887. Writings, public and private. "Writings are of two kinds: 1. Public; and, 2. Private. En. March 11, 1872. Cal. Rep. Cit. Ill, 149; 119, 171. § 1888. Public writings defined. Public writings are: 1. The written acts or records of the acts of the sov- ereign authority, of official bodies and tribunals, and of public officers, legislative, judicial, and executive, whether of this state, of the United States, of a sister state, or of a foreign country; 2. Public records, kept in this state, of private writings. En. March 11, 1872. Cal. Rep. Cit. 49, 212; 52, 186; 59. 506; 114, 550. § 1889. All others private. All other writings are pri- vate. En. March 11, 1S72. Cal. Rep. Cit. 114, 550. § 1892 WRITINGS. 702 ARTICLE II. PUBLIC WRITINGS. 9 1892. E^rerj' citizen entitled to inspect and copy public writings. § 1893. Public officers bound to give copies. § 1894. Four Itinds of public writings. I 1895. Laws, written or unwritten. § 1896. Written laws defined. § 1897. Constitution and statutes. § 1898. Public and private statutes defined. I 1899. Unwritten law defined. I 1900. Books containing laws presumed to be correct. § 1901. Evidence of foreign law. I 1902. Other evidence of laws of other states. § 1903. Recitals in statutes, how far evidence. § 1904. Judicial record defined. § 1905. Record, how authenticated as evidence. § 1906. Record of a foreign country, how authenticated. § 1907. Copy of a foreign record, when evidence. § 190S. Effect of a judgment upon rights in various c ises. § 1909. Effect of othe)- judicial orders, when conclusive. § 1910. Where parties an; to be deemed the same. § 1911. What deemed adjudged In a julgment. § 1912. Where sureties bound, principal is also. § 1013. Record of anothsr state, its effect. § 1914. Record of a court of admiralty. § 1915. Effect of a foreign judgment. § 1916. Manner of impeaching a record. § 1917. The jurisdiction necessary in a judgment. § 1918. Manner of proving other official documents. § 1919. Public record of private writing evidence. § 1920. Entries in official books prima facie evidence. § 1921. Justice's judgment in other slates, how proved. § 1922. Same. § 1923. Contents of other official certificates. § 1924. Provisions in relation to states apply to territories. § 1925. Certificates of purchase primary evidence of ownership. § 1926. Entries made by officers or boards prima facie evidence. § 1927. U S. mineral land patent, date of location prima facie evi- dence. § 1892. Every citizen entitled to inspect and copy pub- lic writings. Every citizen has a right to inspect and take a copy of any public writing of this state, except as other- wise expressly provided by statute. En. March 11, 1872. Cal. Rep. Clt. 114, 550. Public records, etc., open to inspection: Pol. Code, sec. 1032. Proceedings in divorce not to be open for inspection: See Pol. Code, sec. 1032. Fact of issuing attachment not to be made public: See Pol. Code, sec. 1032. rOS WRITINGS. S§ 1S93-1S99 § 1893. Public officers bound to give copies. Every public officer having the custody of a public writing, which a citizen has a right to inspect, is bound to give him, on demand, a certified copy of it, on payment of the legal fees therefjr, and such copy is admissible as evidence in like cases and with like eifect as the original writing. En. March 11, 187^^. Am'd. 1873-4, 381. Cal. Rep. Cit. 49, 212; 59, 50-3; 70, 15; 70, 16. Public records open to inspection: Pol. Code, sec. 1032. § 1894. Four kinds of public wriiiftga. Public writings are divided into four classes: 1. Laws; 2. Judicial records; 3. Other oflBcial documents; 4. Public records, kept in tbis state, of private writings. En. March 11, 1872. Cal. Rep. Cit. 49, 212; 50, 348; 59, 506; 70, 15; 70, 16; 114, 550. § 1895. Laws, written or unwritten. Laws, whether or- ganic or ordinary, are either written or unwritten. En. March 11, 187.'?. § 1896. Written laws defined. A written law is that which is promulgated in writing, and of v/hich a record is in existence. Eu. March 11, 1872. § 1897. Constitution and statutes. The organic law is the constitution of government, and is altogether written. Other written laws are denominated statutes. The writ- ten law of this state is therefore contained in its consti- tution and statutes, and in the constitution and statutes of the United States. En. March 11, 1872. Cal. Rep. Cit. 137, 223. § 1898. Public and private statutes defined. Statutes are public or private. A private statute is one which con- cerns only certain designated individuals and aifects only their private rights. All other statutes are public, in which are included statutes creating or a.ffecting corporations. En. March 11, 1872. § 1899. Unwritten law defined. Unwritten law is the law not promulgated and recorded, as mentioned in sec- §§1900-1903 WPclTINGS. 704 tion eighteen Imndred and ninety-six, but whlcii is, never- theless, observed, and admiiiistercd in the courts of the country. It has no certain repository, but is collected from the reports of the decisions of the courts and the treatises of learned men. En. March 11, 1872. Cal. Rep. Cit. 82, 18. § 1900, Books containing laws presumed to be correct. Books printed or published under tht^ authority of a si«tor state or foreign country and purporting to contaiu the statutes, code, or other written law of such state or country, or proved to be commonly ;i(lmitted in the tri- bunals of such state or country, as evidence of the written law thereof, are admissible in this state as evidence of such law. En. March 11, 1872. Prac. Act, sec. 453. En. April 29, 1851. Books — historical, etc.: Post, sec. 1936; resort to: Ante, sec. 1875; authority of: Post, sec. 1903, subds. 35, 36. Sister state — public writings of: Post, sec. 1924. § 1901. Evidence of foreign law. A copy of the written law or other public writing of any state or country, at- tested by the certificate of the officer having charge of the original, under the public seal of the state or country, is admissible as evidence of such law or writing. En. March 11, 1872. Am'd. 1873-4, 381. Public records of private writings: Post, sec. 1919. Certificate — requisites of: Post sec. 1923. Public writing of sister state: Post, sec. 1924. § 1902. Other evidence of laws of other states. The oral testimony of witnesses, skilled therein, is admissible as evidence of the unwritten law of a sister state or foreign country, as are also printed and published books of reports of decisions of the courts of such state or country, or proved to be commonly admitted in such courts. En. March 11, 1872. § 1903. Recitals in statutes, how far evidence. The recitals in a public statute are conclusive evidence of the facts recited, for the purpose of carrying it into effect, but no further. The recitals in a private statute are con- 7ft5 WRITINGS. 8§ 19O4-190S elusive evidence between parties who claim under its pro- visions, but no further. En. March 11, 1872. Cal. Rep. Cit. 132, 506; 133, 600. Recitals — In written instrument: Post, sec. 1962, subd. 2. § 1904. Judicial record defined. A judicial record is the record or official entry of the proceedings in a court of justice, or of the official act of a judicial officer, in an action or special proceeding. En. March 11, 1872. Cal. Rep. Clt. 52, 186; 118, 101. Judgment-roll: Ante, sec. 670. Execution book as evidence: Ante, sec. 683. § 1905. Record, how authenticated as evidence. A judi- cial record of this state, or of the United States, may be proved by the production of the original or by a copy thereof certified by the clerk or other person having the legal custody thereof. That of a sister state may be proved by the attestation of the clerk, and the seal of the court annexed, if there be a clerk and seal, together with a certificate of the chief judge or presiding magistrate, that the attestation is in due form. En. March 11, 1872. Cal. Rep. Cit. 81, 152; 104, 414; 113, 256; 118, 257; 118, 101. Prac. Act, sec. 449. En. April 29, 1861. Prac. Act, sec. 450. En. April 29, 1851. Am'd. 1854, 67. Cal. Rep. Cit. 7, 249. Judicial record, need of seal: Ante, sec. 158, subd. 8; appointment of executor, etc.: Ante, sec. 1429. • Judicial record of a sister state — U. S. Const., art. 4, Bee. 1. Certificate: Post, sec. 1923. § 1906. Record of a foreign country, how authenticated. A judicial record of a foreign country may be proved by the attestation of the clerk, with the seal of the court an- nexed. If there be a clerk and a seal, or of the legal keeper of the record, with the seal of his office annexed. If there be a seal, together with a certificate of the chief Judge or presiding magistrate, that the person making the attestation Is the clerk of the court, or the legal keeper of the record, and, in either case, that the signa- ture of such person Is genuine, and that the attestaticm Code CivU Proc— 45. §S 1907, 1908 WRITINGS. 10» is in due form. The signature of the chief Judge or pre- siding magistrate must be authenticated by the certificate of the magistrate or embassador, or a consul, vice-con- sul, or consular agent of the United States in such foreign country. En. March 11, 1872. Am'd. 1873-4, 382. Cal. Rep. Cit. 86. 101; 104, 412; 104, 413; 104, 414. Prac. Act, sea 451. En. April 29, 1851. Certificate: Post, sec. 1923. § 1907. Copy of a foreign record, when evidence. A copy of the Judicial record of a foreign country is also admissible in evidence, upon proof: 1. That the copy offered has been compared by the wit- ness with the original, and is an exact transcript of the whole of it; 2. That such original was in the custody of the clerk of the court, or other legal keeper of the same; and, 3. That the copy is duly attested by a seal which is proved to be the seal of the court where the record re- mains, if it be the record of a court; or if there be no such seal, or if it, be not a record of a court, by the sig- nature of the legal keeper of the original. En. March 11, 1872. Cal. Rep. Cit. 86, 102; 104, 414. Prac. Act, sec. 462. En, April 29, 1851. § 1908. Effect of a Judgment upon rights In various cases. The effect of a judgment or final order in an action or special proceeding before a court or judge of this state, or of the United States, having Jurisdiction to pronounce the Judgment or order, is as follows: 1. In case of a judgment or order against a specific thing, or in respect to the probate of a will, or the ad- ministration of the estate of a decedent, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment or order is conclusive upon the title to the thing, the will, or administration, or the condition or relation of the person. 2. In other cases, the judgment or order Is, in respect to the matter directly adjudged, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in 707 WRITINGS. SS 1909 -ISU the same capacity, provided they have notice actual or constructive, of the pendency of the action or proceeding. En. March 11, 1872. Am'd. 1873-4, 382. Cal. Rep. CIt. 54, 257; 56, 420; 58, 114; 58, 163; 62, 201; 62, 203; 63, 6; 63, 567; 69, 588; 70, 361; 70, 371; 72. 315; 74, 515; 74. 516; 75. 177; 83. 294; 91, 349; 96, 807; 109, 205; 112, 287; 119, 151; IViS, 496; 134, 398; 138, 459; 138, 722; 141, 402. Subd. 1—100, 171; 100, 407; 118, 400; 119, 147; 119, 148; 121, 65; 121, 69, 121, 444; 122, 484; 130, 508; 130, 599; 133, 63. Subd. 2—74, 441; 93. 509; 118. 220; 119, 147; 127, 248; 129, 236; 133, 108; 133, 109; 133, 496; 134, 62; 134, 101; 134, 896; 135, 305; 139, 94; 139, 296; 144, 93; 145, 582. Surety bound by record: Post, sec. 1912. Jurisdiction, and collateral attacks: Post, sec. 1917. Validity of judgment founded on service by publication: Ante, sec. 412. Probate and administration, etc.: Ante, sec. 1338. Parties, when deemed same: Post. sec. 1910. Matter directly adjudged: Post, sec. 1911. Partition, judgment In: Ante, sec. 766. § 1909. Effect of other Judicial orders, when conclusive. Other judicial orders of a court or judge of this state, or of the United States, create a disputable presumption, ac- cording to the matter directly determined, between the same parties and their representatives and successors in Interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in the same capacity. En. March 11, 1872. Cal. Rep. Cit. 56, 599; 63, 567; 133, 68; 134, 896. Disputable presumptions: Post, sec. 1963. Parties and privies: Ante, sec. 1908, subd. 2; post, sec. 1910. § 1910. Wiiere parties are to be deemed tlie same. The parties are deemed to be the same when those be- tween whom the evidence is offered were on opposite sides in the former case, and a judgment or other deter- mination could in that case have been made between them alone, though other parties were Joined with both or either. En. March 11, 1872. Cal. Rep. Cit. 63, 567; 80, 254; 127, 459. § 1911. Wliat deemed adjudged in a Judgment. That only Is deemed to have been adjudged In a former judg- f§ 1012-1315 WRITINGS. 708 ment which appears upon its face to have been so ad- Judged, or which was actually and necessarily Included therein or necessary thereto. En. March 11, 1872. Cal. Rep. Cit. 63, 567; 74. 441; 95, 562; 108, 489; 109, 82; 110, 445; 118, 220; 119. 345; 129, 237; 134. 101; 134. 272; 134. 654; 135. 305; 136, 651; 144, 94; 146, 402. § 1912. Where sureties bound, principal is also. When- ever, pursuant to the last four sections, a party is bound by a record, and such party stands in the relation of a surety for another, the latter is also bound from the time that he has notice of the action or proceeding, and an opportunity at the surety's request to join in the defense. En. March 11, 1872. Cal. Rep. Cit. 63, 567. § 1913. Record of another state, its effect. The effect of a judicial record of a sister state is the same in this state as in the state where it was made, except that it can only be enforced here by an action or special pro- ceeding, and except, also, that the authority of a guardian or committee, or of an executor or administrator, doea not extend beyond the jurisdiction of the government un- der which he was invested with his authority. En. March 11, 1872. Cal. Rep. Cit. 70. 407; 70, 411; 138, 459. § 1914. Record of a court of admiralty. The effect of the judicial record of a court of admiralty of a foreign country is the same as if it were the record of a court of admiralty of the United States. En. March 11, 1872. § 1915. Effect of a foreign judgment. The effect of the judgment of any other tribunal of a foreign country hav- ing jurisdiction to pronounce the judgment, is as follows: 1. In case of a judgment against a specific thing, the judgment is conclusive upon the title to the thing; 2. In case of a judgment against a person, the judg- ment is presumptive evidence of a right as between the parties and their successors in interest by a subsequenc title, and can only be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. En. March 11, 1872. 709 WRITINGS. §§ 1916-1S18 § 1916. Manner of impeaching a record. Any judicial record may be impeached by evidence of a want of juris- diction in the court or judicial officer, of collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings. En. March 11, 1872. Cal. Rep. Clt. 71, 475; 79, 191; 97. 396; 138. 459. S 1917. The jurisdiction necessary in a judgment. The Jurisdiction sufficient to sustain a record is jurisdiction over the cause, over the parties, and over the thing, when a specific thing is the subject of the judgment. En. March 11, 1872. Cal. Rep. Clt. 66, 134. S 1918. Manner of proving other official documents. Other official documents may be proved as follows: 1. Acts of the executive of this state, by the records of the state department of the state; and of the United States, by the records of the state department of the United States, certified by the heads of those departments respectively. They may also be proved by public docu- ments printed by order of the legislature or congress, or either house thereof. 2. The proceedings of the legislature of this state or of congress, by the journals of those bodies respectively, or either house thereof, or by published statutes or reso- lutions, or by copies certified by the clerk or printed by their order. 3. The acts of the executive, or the proceedings of the legislature of a sister state in the same manner. 4. The acts of the executive, or the proceedings of the legislature of a foreign country, by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some public act of the executive of the United States. 5. Acts of a municipal corporation of this state, or of a board or department thereof, by a copy certified by the legal keeper thereof, or by a printed book published by the authority of such corporation. 6. Documents of any other class in this state, by the original, or by a copy certified by the legal keeper thereof. §§ 1919, 1920 WRITINGS. TIO 7. Documents of any other class in a sister state, by the original, or by a copy, certified by the legal keeper thereof, together with the certificate of the secretary of state, judge of the supreme, superior, or county court, or mayor of a city of such state, that the copy is duly certified by the officer having the legal custody of the original. 8. Documents of any other class In a foreign country, by the original, or by a copy, certified by the legal keeper thereof, with a certificate, under seal of the country or sovereign, that the document is a valid and subsisting document of such country and the copy is duly certified by the officer having the legal custody of the original. 9. Documents in the departments of the United States government, by the certificates of the legal custodian thereof. En. March 11, 1872. Am'd. 1873-4, 383. Cal. Rep. Cit. 69, 495; 113, 55. Subd. 5—97, 597; 111, 49. Subd. 6—52, 187. Subd. 7—130, 39. Subd. 9— 113, 54. Certificate: Sec. 1923. Documents in this state: Post, sec. 1920. "Sister state" includes United States and territories: Post, sec. 1924. § 1919. Public record of private writing evidence. A public record of a private writing may be proved by the original record, or by a copy thereof, certified by the legal keeper of the record. En. March 11, 1872. Cal. Rep. Cit. 50, 348; 52, 186; 59, 506; 63, 106; 70, 16- 70, 367; 70, 368; 89, 139; 91, 164. Compare: Ante, sec. 1855. Certificate: Post, sec. 1923. Transcript from probate records: Ante, sec. 1429, § 1920. Entries in official books prima facie evidence. Entries in public or other official books or records, made In the performance of his duty by a public officer of this state, or by another person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts stated therein. En. March 11, 1872. Am'd 1873-4 384. Cal. Rep. Clt. 70, 570; 75, 303; 75, 448; 90, 187; 91 164; 97, 597; 111, 49; 118, 71. Official documents — Proof of: Ante, sec. 1918. Entries — By officer or board, etc.: Post, sec. 1926. 7U WRITINGS. II 1921-1924 § 1921. Justice's judgment in other states, how proved. A transcript from the record or docket of a justice of the peace of a sister state, of a judgment rendered by him, of the proceedings in the action before the judgment, of the execution and return, if any, subscribed by the justice and verified in the manner prescribed in the next section, Is admissible evidence of the facts stated therein. Bn. March 11, 1872. Cal. Rep. Cit 138, 463. § 1922. Same. There must be attached to the tran- script a certificate of the justice that the transcript is in all respects correct, and that he had jurisdiction of the action, and also a further certificate of the clerk or pro- thonotary of the county in which the justice resided at the time of rendering the judgment, under the seal of the county, or the seal of the court of common pleas or county court thereof, certifying that the person subscribing the transcript was, at the date of the judgment, a justice of the peace in the county, and that the signature is genuine. Such judgment, proceedings, and jurisdiction may also be proved by the justice himself, on the production of his docket, or by a copy of the judgment, and his oral exam- ination as a witness. En. March 11, 1872. Cal. Rep. Cit. 138, 460; 138, 462. § 1923. Contents of other official certificates. When- ever a copy of a writing is certified for the purpose of evi- dence, the certificate must state in substance that the copy is a correct copy of the original, or of a specified part thereof, as the case may be. The certificate must be un- der the official seal of the certifying ofiicer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. En. March 11, 1872. Am'd. 1873-4, 384. Cal. Rep. Cit. 113, 54. § 1924. Provisions in relation to states apply to terri- tories. The provisions of the preceding sections of this article applicable to the public writings of a sister state, are equally applicable to the public writings of the United States or a territory of the United States. En. March 11, 1872. Am'd. 1873-4, 385. §§ 1923-1927 WUITINGS. tU § 1925. Certificates of purchase primary evidence of ownership, A certificate of purchase or of location of any lands in this state, issued or made in pursuance of any law of the United States or of this state, is primary evi- dence that the holder or assignee of such certificate is the owner of the land described therein: but this evidence may be overcome by proof that at the time of the location, or time of filing a pre-emption claim on which the certifi- cate may have been issued, the land was in the adverse possession of the adverse party, or those under whom he claims, or that the adverse party is holding the land for mining purposes. En. March 11, 1872. Cal. Rep. Cit. 51, 414; 52. 301; 59, 626; 63, 453; 75, 587; 84, 501; 84, 502; 87, 299; 90, 156; 91, 543; 91, 544; 91, 545; 125, 405. § 1926. Entries made by officers or boards prima facie evidence. An entry made by an officer, or board of officers, or under the direction and in the presence of either, In the course of official duty, is prima facie evidence of the facts stated in such entry. EJn. March 11, 1872. Am'd. 1873-4, 385. Cal. Rep. Cit. 70, 570; 90, 187. Return of sheriff is prima facie evidence: See Pol. Code, sec. 4178. § 1927. U. 8. mineral land patent, date of location is prima facie evidence. Whenever any patent for mineral lands within the State of California, issued or granted by the United States of America, shall contain a statement of the date of the location of a claim or claims, upon which the granting or issuance of such patent is based, such state- ment shall be prima facie evidence of the date of such loca- tion. En. Stats. 1905, 78. Jia WRITINGS. fiS 1S29-1331 ARTICLE m. PRIVATK WRITINGS. S MI9. Priyate writings classified. § 1930. Seal defined. § 1931. Seal, and how made. § 1932. Effect of a seal. § 1933. Execution of an Instrument drtJaei. § 1934. Compromise of a debt without seal good. § 1935. Subscribing witness defined. §1936. Books, mars, etc., how far evidence. § 1937. Original writing to be produced or accounted for. __ § 1938. When In possession of adverse party, notice to b« grtTCB. § 1939. Writings called for and inspected may be withheld. I 1940. Writing, how proved. § 1941. Other witnesses may also testify. § 1942. When evidence of execution not necessary- § 1943. Evidence of handwriting. § 1944. Evidence of handwriting by comparison. § 1945. Same. § 1946. Entries of decedents, evidence In is>€clfled eaacs. § 1947. Copies of entries also allowed. § 1948. Private writings, how proved. § 1949. County clerks to keep private papers deposited. (KepealeM.) 5 1950. Removal of public records. § 1951. Instrument conveying or affecting real property may be read in evidence. § 1929. Private writings classified. Private writings are either: 1. Sealed; or, 2. Unsealed. En. March 11, 1872. No distinction — Between sealed and unsealed writings: Post, sec. 1932. § 1930. Seal defined. A seal is a particular sign, made to attest in the most formal manner, the execution of an instrument. En. March 11, 1872. Prac. Act, sec. 454. En. April 29, 1851. Seal generally: Ante, sec 14; how made: Post, sec. 1931. § 1931. Seal, and how made. A public seal in this state is a stamp or impression made by a public ofllcer with an instrument provided by law, to attest the execution of an official or public document, upon the paper, or upon any substance attached to the paper, which is capable of re- ceiving a visible impression. A private seal may be made §§ 1932-1936 WRITINGS. HA in the same manner by any instrument, or it may be made by the scroll of a pen, or by writing the word "seal" against the signature of the writer. A scroll or other sign, made in a sister state or foreign country, and there recognized as a seal, must be so regarded in this state. En. March 11, 1872. Am'd. 1873-4, 385. Scope of word "seal": Ante, sec. 14. Impression of seal: See Civ. Code, sec. 1628. Seals of courts: Ante, sees. 147-153. § 1932. Effect of a seal. There shall be no difference hereafter, in this state, between sealed and unsealed writ- ings. A writing under seal may therefore be changed, or altogether discharged, by a writing not under seal. En. March 11, 1872. Am'd. 1873-4, 386. Corresponding provisions: See Civ. Code, sec. 1629. Agreement of composition requires no seal: Post, sec. 1934. § 1933. Execution of an instrument defined. The exe- cution of an instrument is the subscribing and delivering it, with or without affixing a seal. En. March 11, 1872. Cal. Rep. Cit. 99, 285; 101, 539; 114, 515; 130, 103. § 1934. Compromise of a debt without sea! good. An agreement in writing without a seal for the compromise or settlement of a debt, is as obligatory as if a seal were affixed. En. March 11, 1872. § 1935. Subscribing witness defined. A subscribing wit- ness is one who sees a writing executed or hears it ac- knowledged, and at the request of the party thereupon signs his name as a witness. En. March 11, 1872. Cal. Rep. Cit. 134, 488. § 1936. Books, maps, etc., how far evidence. Historical works, books or science or art, and published maps or charts, when made by persons indifferent between the pari:ies, are prima facie evidence of facts of general noto- riety and interest. En. March 11, 1872. Am'd. 1873-4, 386. Cal. Rep. Cit. 61, 552; 67, 15. Books — As aid to court: Ante, sec. 1875; as evidence; Ante, sec. 1900; presumptions as to: Post, sec. 1963 suMa 35, S6. T15 WRITINGS. §9 1937-1940 § 1937. Original writing to be produced or accounted for. The original writing must be produced and proved, except as provided in sections eighteen liundred and fifty- five and nineteen hundred and nineteen. If it has been lost, proof of the loss must first be made before evidence can be given of its contents. Upon such proof being made, together with proof of the due execution of the writing, its contents may be proved by a copy, or by a recital of its contents in some authentic document, or by the recollec- tion of a witness, as provided in section eighteen hundred and fifty-five. En. March 11, 1872. Cal. Rep. Cit. 113, 299. § 1938. When in possession of adverse party, notice to be given. If the writing be in the custody of the adverse party, he must first have reasonable notice to produce it. If he then fail to do so, the contents of the writing may be proved as in the case of its loss. But the notice to produce it is not necessary where the writing is itself a notice, or where it has been wrongfully obtained or with- held by the adverse party. En. March 11, 1872. Cal. Rep. Cit. 59, 506; 132, 136. Document in possession — Of opponent: Ante, sec. 1855, subd. 2. Demanding inspection of writing: Ante, sec. 1000. § 1939. Writings called for and inspected may be with- held. Though a writing called for by one party is pro- duced by the other, and is thereupon inspected by the party calling for it, he is not obliged to produce it as evi- dence in the case. En. March 11, 1872. Writings shown to witness: Sec. 2054, post. § 1940. Writing, how proved. Any writing may be proved either: 1. By anyone who saw the writing executed; or, 2. By evidence of the genuineness of the handwriting of the maker; or, 3. By a subscribing witness. En. March 11, 1872. Aan'd. 1873-4, 386. Cal. Rep. Cit 96. 587; 145, 85. §§ 1941-1945 WRTTINOS. tM Proof of execution of writing — By admission: Post, sec. 1942. Proof of handwriting: Post, sec. 1943. Subscribing witness: Ante, sec. 1935; other evidence of execution when admissible: Post, sees. 1941-1945; on con- test of will: Ante, sec. 1315. § 1941. Other witnesses may also testify. If the sub- scribing witness denies or does not recollect the execu- tion of the writing, its execution may still be proved by other evidence. En. March 11, 1872. § 1942. When evidence of execution not necessary. Where, however, evidence is given that the party against whom the writing is offered has at any time admitted ita execution, no other evidence of the execution need be given, when the instrument is one mentioned in section nineteen hundred and forty-five, or one produced from the custody of the adverse party, and has been acted upon by him as genuine. En. March 11, 1872. § 1943. Evidence of handwriting. The handwriting of a person may be proved by anyone who believes it to be his, and who has seen him write, or has seen writings pur- porting to be his, upon which he has acted or been charged, and who has thus acquired a knowledge of bis handwrit- ing. En. March 11, 1872. Cal. Rep. Cit. 56, 474; 58, 289; 80, 85. § 1944. Evidence of handwriting by comparison. Evi- dence respecting the handwriting may also be given by a comparison, ma-de by the witness or the jury, with writ- ings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. En. March 11, 1872. Am'd. 1873-4, 386. Cal. Rep. C5it. 56, 474; 68, 289; 80, 85; 116, 154; 121, 569; 128, 488. § 1945. Same. Where a writing is more than thirty years old, the comparisons may be made with writings purporting to be genuine, and generally respected and acted upon as such, by persons having an interest in know- ing the fact. En. March 11, 1872. T17 WRITINGS. 55 1946-1U5:J Presumption— That ancient writing is genuine: Post, sec. 1963, subd. 34. § 1946. Entries of decedents, evidence in specified cases. The entries and other writings of a decedent, made at or near the time of the transaction, and in a position to itnow the facts stated therein, may be read as prima facie evri- dence of the facts stated therein, in the following cases: 1. When the entry was made against the interest of the person making it. 2. When it was made in a professional capacity, and in the ordinary course of professional conduct. 3. When it was made in the performance of a duty specially enjoined by law. En. March 11, 1872. Am'd. 1873-4, 386. Cal. Rep. Cit. 134, 30. Entries in books — Repeated: Post, sec, 1947; where al- teration: Post, sec. 1982. § 1947. Copies of entries also allowed. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are equally regarded as originals. En. March 11, 1872. Cal. Rep. Cit. 82, 166. § 1948. Private writings, how proved. EJvery private writing, except last wills and testaments, may be ac- knowledged or proved and certified in the manner provided for the acknowledgment of proof of conveyances of real property, and the certificate of such acknowledgment or proof is prima facie evidence of the execution of the writ- ing in the same manner as if it were a conveyance of real property. En. March 11, 1872. Am'd. 1873-4, 387. Cal. Rep. Cit. 83, 272. Conveyance of real property— As evidence: Post, sec. 1951. § 1949. County clerks to keep private papers deposited. En. March 11, 1872. Rep. 1873-4, 387. § 1950. Removal of public records. The record of a conveyance of real property, or any other record, a tran- SS »»0i. i«4 MATERIAL OBJECTS, ETC. ^l» script of which is admissible in evidence, must not be re- moved from the office where it is liept, except upon the order of a court, in cases where the inspection of tne record is shown to be essential to the just determination of the cause or proceeding pending, or where the court is held in the same building with such office. En. March 11, 1873-4, 388. Am'd. 1889, 45. Cal. Rep. Clt. 113, 267. § 1951. Instrument conveying or affecting real property may be read in evidence. Every instrument conveying or affecting real property, acknowledged or proved and certi- fied, as provided in the Civil Code, may, together with the certificate of acknowledgment or proof, be read in evidence in an action or proceeding, without further proof; also, the original record of such conveyance or instrument thus acknowledged or proved, or a certified copy oC the record of such conveyance or instrument thus acknowledged or proved, may be read in evidence, with the like effect as the original instrument, without further proof. En. Stats. 1873-4, 388. Am'd. 1889 45. Cal. Rep. Cit. 70, 15; 70, 16; 70, 367; 74, 429; 80, 536; 89, 139; 91, 163; 91, 164; 103, 111; 120, 315; 135, 314; 135, 319; 139, 557; 144, 34. Certified copy, etc.: Sec. 1948, ante. CHAPTER IV. MATERIAL. OBJECTS PRESENTED TO THE SENSES, OTHER THAN WRITINGS. 8 1954. Material objects. § 1954. Material objects. Whenever an object, cogniz- able by the senses, has such a relation to the fact in dis- pute as to afford reasonable grounds of belief respecting it, or to make an item in the sum of the evidence, such object may be exhibited to the jury, or its existence, situ- ation, and character may be proved by witnesses. The ad- mission of such evidence must be regulated by the sound discretion of the court. En. March 11, 1872. Cal. Rep. Cit. 107, 209; 134, 507; 146. 132. 71» . INDIRECT EVIDENCE, ETC. §§ 1557-1S61 CHAPTER V. INDIRECT EVIDENCE, INFERENCES, AND PRESUMPTIONS. § 1957. Indirect evidence classified. I 1958. Inference defined. § 1959. Presumption defined. § 1960. When an inference arises. § 1961. Presumptions may be controverted, whea. § 1362. Specification of conclusive presumptions. § 1963. All other presumptions may be controverted. § 1957. Indirect evidence classified. Indirect evidence is of two kinds: 1. Inferences; and, 2. Presumptions. En. March 11. 1872. Cal. Rep. Cit. 59, 300; 79, 307; 79, 308; 83, 510; 141, 63; 143, 398. § 1958. Inference defined. An inference is a deduction which the reason of the jury malves from the facts proved, without an express direction of law to that effect. En. March 11, 1872. Cal. Rep. Cit. 59, 800; 82, 438; 114, 46; 130, 7; 143, 398. § 1959. Presumption defined. A presumtion is a de- duction which the law expressly directs to be made from particular facts. En. March 11, 1872. Cal. Rep. Cit. 75, 100; 79, 307; 135, 180; 135, 319; 137, 84; 143, 398; 143, 647. § 1960. When an inference arises. An inference must be founded: 1. On a fact legally proved; and, 2. On such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the per- son whose act is in question, the course of business, or the course of nature. En. March 11, 1872. Cal. Rep. Cit. 59, 300; 75, 100; 143, 263; 143, 398; 143, 647. Subd.' 1—139, 123. Subd. 2—106, 529; 130, 7; 141, 68. § 1961. Presumptions may be controverted, when. A presumption (unless declared by law to be conclusive) may be controverted by other evidence, direct or Indirect; but unless so controverted, the jury are bound to find ac- cording to the presumption. En. March 11, 1872. Cal. Rep. Cit. 79, 307; 83, 272; 83, 510; 89, 295; 180, 7; 135, 319; 148, 648; 144, 702. §J 1962, 1963 INDIRECT EVIDENCE, ETC. 720 S 1962. Specification of conclusive presumptions. The following presumptions, and no others, are deemed con- clusive: 1. A malicious and guilty intent, from the deliberate commission of an unlawful act, for the purpose of injur- ing another; 2. The truth of the facts recited, from the recital In a written Instrument between the parties thereto, or their successors In Interest by a subsequent title; but this rule does not apply to the recital of a consideration: 3. Whenever a party has, by his own declaration, act, or omission. Intentionally and deliberately led another to be- lieve a particular thing true, and to act upon such belief, he cannot. In any litigation arising out of such declaration, act, or omission, be permitted to falsify It; 4. A tenant Is not permitted to deny the title of his landlord at the time of the commencement of the relation; 5. The issue of a wife cohabiting with her husband, who Is not Impotent, Is indisputably presumed to be legitimate; 6. The Judgment or order of a court, when declared by this code to be conclusive; but such Judgment or order must be alleged In the pleadings, If there be an oppor- tunity to do so; if there be no such opportunity, the Judg- ment or order may be used in evidence. 7. Any other presumption which, by statute. Is expressly made conclusive. En. March 11, 1872. Oal. Rep. Clt. 70, 105; 70, 442; 89, 295; 89, 296; 128, 274; 145, 140. Subd. 1—139, 69; 146, 528; 142, 530. Bubd. 2—63, 540; 74, 411; 96, 109; 96, 110, 118, 389; 118, 9»; 181, 383; 142, 15. Subd. 3—82, 83; 82, 453; 90, 162; 107, 295; 109, 220; 110, 106; 115, 365; 130, 539; 134, 444; 142, 42; 142, 115; 143, 504. Subd. 4—70, 107. Subd. 5—137, 301; 137, 303; 142, 627. Subd. 8. Standing by, etc. : Civ. Code, sec. 1709. Subd. 4. Tenant denying landlord's title: Civ. Code, sec. 1948. Subd. 5. Judgments, etc.: Ante, sec. 1908. Decree allowing executors, etc., accounts: Ante, sec. 1638; evidence of notice on application for liters of ad- ministration: Ante, sec. 1370; probate: Ante, sec. 1333; conclusive evidence generally: Post, sec. 1978. § 1963. All other presumptions may be controverted. All other presumptions are satisfactory, if uncontradicted. They are denominated disputable presumptions, and may 721 INDIRECT EVIDKNCE, ETC. § 1963 be controverted by other evidence. The following are of that kind: 1. That a person is innocent of crime or wrong; 2. That an unlawful act was done with an unlawful intent; 3. That a person intends the ordinary consequence of his voluntary act; 4. That a person takes ordinary care of his own con- cerns; 5. That evidence willfully suppressed would be adverse if produced; 6. That higher evidence would be adverse from inferior being produced; 7. That money paid by one to another was due to the latter; 8. That a thing delivered by one to another belonged to the latter; 9. That an obligation delivered up to the debtor has been paid ; 10. That former rent or installments have been paid when a receipt for later is produced; 11. That things which a person possesses are owned by him; 12. That a person is the owner of property from exer- cising acts of ownership over it, or from common reputa- tion of his ownership; 13. That a person in possession of an order on himself for the payment of money, or the delivery of a thing, has paid the money or delivered the thing accordingly; 14. That a person acting in a public office was regularly appointed to it; 15. That official duty has been regularly performed; 16. That a court or judge, acting as such, whether in this state or any other state or country, was acting in the lawful exercise of his jurisdiction; 17. That a judicial record, when not conclusive does still correctly determine or set forth the rights of the parties; 18. That all matters within an issue were laid before the jury and passed upon by them; and in like manner, that all matters within a submission to arbitration were laid before the arbitrators and passed upon by them; 19. That private transactions have been fair and regu- lar; 20. That the ordinary course of business has been fol- lowed; Code Civil Proc.— 46. I 19« INDIRECT EVIDENCE, ETC. TO 21. That a promissory note or bill of exciiange was given or indorsed for a sufficient consideration; 22. That an indorsement of a negotiable promissory note or bill of exchange was made at the time and place of making the note or bill; 23. That a writing is truly dated; 24. That a letter duly directed and mailed was received in the regular course of the mail; 25. Identity of person from identity of name; 26. That a person not heard from in seven years is dead; 27. That acquiescence followed from a belief that the thing acquiesced in was conformable to the right or fact; 28. That things have happened according to the ordin- ary course of nature and tJie ordinary habits of life; 29. That persons acting as copartners have entered into contract of copartnership; 30. That a man and woman deporting themselves as husband and wife have entered into a lawful contract oi! marriage; 31. That a child born in lawful wedlock, there being no divorce from bed and board, is legitimate; 32. That a thing once proved to exist continues as long as is usual with things of that nature; 33. That the law has been obeyed; 34. That a document or writing more than thirty years old, is genuine, when the same has been since generally acted upon as genuine, by persons having an interest in the question, and its custody has been satisfactorily ex- plained. 35. That a printed and published book, purporting to be printed or published by public authority, was so printed or published; 36. That a printed and published book, purporting to contain reports of cases adjudged in the tribunals of the state or country where the book is pubfished, contains correct reports of such cases; 37. That a trustee or other person, whose duty It was to convey real property to a particular person has actu- ally conveyed to him, when such presumption is neces- sary to perfect the title of such person or his successor in interest; 38. The uninterrupted use by the public of land for a burial ground, for five years, with the consent of the owner and without a reservation of his rights, is pre- sumptive evidence of his intention to dedicate it to the public for that purpose; T23 INDIRECT EVIDENCE, ETC. S 194. 39. That there was a good and sufficient consideration for a written contract; 40. When two persons perish in the same calamity, such as a wreck, a battle, or a conflagration, and it is not shown who died first, and there are no particular circum- stances from which it can be inferred, survivorship is presumed from the probabilities resulting from the strength, age, and sex, according to the following rules: First. — If both of those who have perished were under the age of fifteen years, the older is presumed to have survived; Second. — If both were above the age of sixty; the younger is presumed to have survived; Third — If one be under fifteen and the other above sixty, the former is presumed to have survived; Fourth. — If both be over fifteen and under sixty, and the sexes be different, the male is presumed to have sur- vived; if the sexes be the same, then the older; Fifth. — If one be under fifteen or over sixty, and the other between those ages, the latter is presumed to have survived. En. March 11, 1872. Cal. Rep. Cit. 81, 325; 89, 295; 105, 65; 113, 405; 122, 499; 129, 328; 129, 389; 132, 212; 137, 283; 146, 121. Subd. 1—81, 233; 111, 267; 134, 211; 134, 443; 134, 615; 137, 223; 144, 701; 144, 707. Subd. 2—83, 382; 86, 147; 112, 371. Subd. 3—134, 443. Subd. 4—76, 652; 134, 488; 139, 525; 142, 69; 142, 132. Subd. 5—130, 356; 133, 241; 141, 60; 143, 167. Subd. 6—122, 493; 130, 356; 130, 357; 133, 241; 140, 399; 143. 167. Subd. 8—106, 655; 119, 467. Subd. 9—79, 566; 106, 529; 125, 621. Subd. 10—142, 69. Subd. 11—69, 202; 83, 166; 106, 655; 139, 525; 142, 69; 144, 701. Subd. 12—83, 166; 99, 372; 139, 525. Subd. 14—53, 30; 67, 184; 77, 47; 97, 177; 108, 542; 128, 398; 139, 558; 144, 701. Subd. 15—56, 589; 68, 484; 71, 24; 71, 208; 75, 451; 76, 152; 77, 47; 78, 299; 79, 503; 81, 233; 82, 516; 83, 449; 87, 48; 97, 597; 100, 321; 107, 186; 108, 542; 109, 691; 111, 49; 117, 702; 121, 197; 126, 655; 129, 328; 130, 39; 132, 506; 133, 390; 134, 211; 135, 180; 135, 231; 136, 244; 136, 406; 138. 227; 142, 450; 145, 470. Subd. 16—97. 177; 122, 206; 128, 398; 132, 506; 133, 390; 135, 180; 143, 278. Subd 18—61, 132; 98, 632. Subd. 19—85, 61; 137, 35; 144, 707. Subd. 20—81, 233; 83, 483; 106, 529; 126. 49; 142, 69. Subd. 21—96, 110; 106, 655; 140, 546. Subd. 22—106, 655. Subd. 24—99, 73; I 156J INDIRECT EVIDKNCE, 7iTC. T24 112, 371; 129, 24; 132, 76. Subd. 25—61, 543; 75, 100; 75, 244; 113, 405; 119, 308; 128, 555; 144, 701. Subd. 26—71, 267; 138, 289. Subd. 28—76, 297; 81. 233; 139, 525; 142, 69; 144, 707. Subd. 30.-82, 453. Subd. 32—60, 419; 69, 418; 71, 121; 79, 310; 81 405; 85, 502; 98, 660; 119, 56; 128, 398; 128, 631; 143, 168. Subd. 33—81, 233; 123, 631; 126, 49. Subd. 34—139, 389. Subd. 39—83, 483; 96, 110; 129. 389. Subd. 40—65, 54; 76, 652. Subds. 17, 18. Proceedings of courts: Ante, sec. 1908. Subd. 20. Ordinary course of business has been fol- lowed: Sec. 1960. Subd. 21. Note or bill imports a consideration. — A writ- ten instrument is presumptive evidence of a consideration: Civ. Code, sec. 1614. The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it: Civ. Code, sec. 1615; and see subd. 39 of this section. Subd. 31. Legitimacy: See Civ. Code, sec. 193. Other presumptions. — Transcript to shorthand notes is prima facie evidence: Sec. 273, ante; order of probate court for disclosure of property of estate: Sec. 1460, ante; conveyance executed by executor, etc.: Sec. 1601. ante. AflBdavits on sales of stock for deliquent assessments; Civ. Code, sec. 348. Affidavits and entries in partnership proceedings: Civ. Code, sees. 2471, 2485. Protest of notary is prima facie evidence: Pol. Code, sec. 795. Books and records of regiments, etc., and proceedings are prima facie evidence: Pol. Code, sec. 1935. The secretary of the fire department, or fire company, must keep a record of all certificates of exemption or ac- tive membership, the date thereof and to whom issued. Certificate of fire department is prima facie evidence of the facts therein stated: Pol. Code, sec. 3341. Surveys and maps of boundary lines are prima facie evi- dence: Pol. Code, sec. 3973. 12( INDISPENSABLE EVIDENCE. §§ l»67-mo CHAPTER VI. INDISPENSABLE EVIDENCE. I 19«T. Indispensable evidence, what. I ia«8. To prove perjury and treason, more than one witness requlrea. § 1969. Will to be In writing. § 1970. Will, how revoked. § 1971. Transfer of real property to be In writing. § 1972. Last section not to extend to certain cases. S 1973. Agreement not In wriUng, when invalid. § 1974. Representation of credit by writing. § 1967. Indispensable evidence, what. The law makes certain evidence necessary to the validity of particular acts, or the proof of particular facts. En. March 11, 1872. § 1968. To prove perjury and treason, more than one witness required. Perjury and treason must be proved by testimony of more than one witness. Treason by the testimony of two witnesses to the same overt act; and perjury by the testimony of two witnesses, or one wit- ness and corroborating circumstances. En. March 11, 1872. Cal. Rep. Cit. 103, 631; 104, 417; 118, 51; 118, 53; 118, 54; 131. 257; 131, 260; 139, 601; 139, 603; 144, 286; 146, 117. Two witnesses — ^For probate of lost will: Ante, sec. 1339, § 1969. Will to be in writing. A last will and testament, except a nuncupative will, is invalid, unless it be in writ- ing and executed with such formalities as are required by law. When, therefore, such a will is to be shown, the instrument itself must be produced, or secondary evidence of Its contents be given. En. March 11, 1872. Am'd. 1873-4, 388. Lost or destroyed will — Probate of: Ante, sees. 1338- 1341. S 1970. WHI, how revoked. A written will cannot be revoked or altered otherwise than as provided in the Civil Code. En. March 11, 1872. Am'd. 1873-4, 388. Cal. Rep. Clt. 107, 5. Revocation or alteration of will: See Civ. Code, sees. 1292 et seq. §§ 1971-1973 INDISPENSABLE EVIDENCE. 728 § 1971. Transfer of real property to be in writing. No estate or interest in real property, other than for leases for a term not exceeding one year, nor any trust or power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party cre- ating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing. En. March 11, 1872. Cal. Rep. Cit. 64,26; 70,317; 76,471; 78,534; 80,518; 81, 207; 91, 398; 122, 427; 132, 322; 141, 228; 144, 782. Scope of section — Application restricted by: Sec. 1972, post. Corresponding provisions: Civ. Code, sec. 1091. Real property — Estate, interest, etc., in: Compare post, sec. 1973, subd. 5. Trust: Civ. Code, sec. 852. Grant, etc.: Civ. Code, sec. 1053. § 1972. Last section not to extend to certain cases. The preceding section must not be construed to affect the power of a testator in the disposition of his real property by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or opera- tion of law, nor to abridge the power of any court to com- pel the specific performance of an agreement, in case of part performance thereof. En. March 11, 1872. Cal. Rep. Cit. 64, 26; 65, 509; 121, 44. Specific performance: Civ. Code, sees. 33S4 et seq. § 1973. Agreement not in writing, when invalid. In the following cases the agreement is invalid, unless the same or some note or memorandum thereof be in writing, and subscribed by the party charged, or by his agent. ' Evi- dence, therefore, of the agreement, cannot be received without the writing or secondary evidence of its contents: 1. An agreement that by its terms is not to be performed within a year from the making thereof; 2. A special promise to answer for the debt, default, or miscarriage of another, except in the eases provided for in section twenty-seven hundred and ninety-four of the Civil Code; 727 INDISPENSABLE EVIDENCE. | 13T4 3. An agreement made upon consideration of marriage, other ttian a mutual promise to marry; 4. An agreement for the sale of goods, chattels, or things in action, at a price not less than two hundred dollars, un- less the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such .things in action, or pay at the time some part of the purchase money; but when a sale is made by auction, an entry by the auctioneer in his sale-book, at the time of the sale, of the kind of property sold, the terms of sale, the price, a'ad the names of the purchaser and person on whose ac- count the sale is made, is a sufficient memorandum; 5. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein, and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged. En. March 11, 1872. Cal. Rep. Cit. 64,26; 72,144; 77,282; 78,534; 81,207; 91, 398; 93. 495; 105, 519; 111, 285. Subd. 4—117, 47. Subd. 5—121, 44; 140, 159. Corresponding provision: Civ. Code, sec. 1624. Agreement for sale of goods, etc. — Corresponding provi- sion: Civ. Code, sec. 1739; auction sale: Civ. Code, sec. 1798; Pol. Code, sec. 3292; agreement to manufacture: Civ. Code, sec. 1740. Parol evidence, when admissible to explain writing: Ante, sec. 1856. Guaranty to be in writing: Civ. Code, sees. 2793, 2794. Guaranty by executor: Ante, sec. 1612. Preventing contract being put into writing by fraud: See Civ. Code, sec. 1623. § 1974. Representation of credit by writing. No evi- dence is admissible to charge a person upon a representa- tion as to the credit of a third person, unless such repre- sentation, or some memorandum thereof, be in writing, and either subscribed by, or in the handwriting of, the party to be charged. En. March 11, 1872. §§ 1978-1982 BY WHOM TO BE PRODUCED. T» CHAPTER VII. CXDNCLUSIVB OR UNANSWERABLE EVIDENCH. § 1978. Conclusive or unanswerable evidence. § 1978. Conclusive or unanswerable evidence. No evi- dence is by law made conclusive or unanswerable, unless so declared by this code. En. March 11, 1872. TITLE III. OF THE PRODUCTION OF EVIDENCE. Chapter I. By Whom to be Produced, §§ 1981, 1982. II. Means of Production, §§ 1985-1997. III. Manner of ProducUon, §§ 2002-2054. CHAPTER I. BY WHOM TO BE PRODUCED. t 1981. Evidence to be produced, by whom. I 1982. Writing altered, who to explain. § 1981. Evidence to be produced, by whom. The party holding the affirmative of the issue must produce the evi- dence to prove it; therefore, the burden of proof lies on the party who would be defeated if no evidence were given on either side. En. March 11, 1872. Cal. Rep. Cit. 68, 10; 81, 403; 94, 175; 106, 697; 128, 62; 137, 283; 140, 421; 140, 430; 140, 432; 140, 439. Burden of proof: Ante, sec. 1869. § 1982. Writing altered, who to explain. The party pro- d""ing 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, must 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, or that the altera- T29 MEANS OF PRODUCTION. $i 1985, 1986 tion did not change the meaning or language of the instru- ment. If he do that, he may give the writing in evidence, but not otherwise. En. March 11, 1872. Cal. Rep. Cit. 56, 214; 80, 265; 89, 616; 94, 367; 142, 205. Prac Act, sec. 448. En. April 29, 185L CHAPTER II. MEANS OP PRODUCTION. § 1985. Subpoena for witness defined. § 1986. Subpoena, how issued. § 1987. Subpoena, how served. § 1988. How, if witness be concealed. § 1989. When a witness is compelled to attend. * § 1990. Person present compelled to testify. § 1991. Di30b€^llence, how punished. § 1992. Forfeiture therefor § 1993. Warrant may issue to bring witness, when. § 1994. Contents of warrant. § 1995. If witness be a prisoner, how brought. § 1996. On whose motion. § 1997. How examined. § 1985. Subpoena for witness defined. The process by which the attendance of a witness is required is a sub- poena. It is a writ or order directed to a person and re- quiring his attendance at a particular time and place to testify as a witness. It may also require him to bring with him any books, documents, or other things under his con- trol, which he is bound by law to produce in evidence. En. March 11, 1872. Cal. Rep. Cit. 126, 239. Prac. Act, sec. 402. En. April 29, 1851. Am'd. 1855, 197. § 1986. Subpoena, how issued. The subpoena is issued as follows: 1. To require attendance before a court, or at the trial of an issue therein, it is issued under the seal of the court before which the attendance is required, or in which the issue is pending; 2. To require attendance out of the court, before a judge. Justice, or other oflficer authorized to administer oaths or take testimony in any manner under the laws of this state. It is issued by the judge, justice, or any other oflScer be- fore whom the attendance is required; §§ 19S7. 1988 MEANS OF PRODUCTION. 730 3. To require attendance before a commissioner ap- pointed to take testimony by a court of a foreign country, or of the United States, or of any other state in the United States, or of any other district or county within this state, or before any officer or officers empowered by the laws of the United States to talte testimony, it may be issued by any judge or justice of the peace in places within their respective jurisdiction, with like power to enforce attend- ance; and, upon certificate of contumacy to said court, to punish contempt of their process, as such judge or justice could exercise if the subpoena directed the attendance ot the witness before their courts in a matter pending therein. En. March 11, 1872. Cal. Rep. Cit. 56, 599; 72, 511; 140, 219. Subd. 2—64, 401; 140, 14. Subd. 3—72, 282. Prac. Act, sec. 403. En. April 29, 1851. Am'd. 1859, 218; 1866, 708. § 1987. Subpoena, how served. The service of a sub- poena is made by showing the original and delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to him at tlie same time, if demanded by him, the fees to which he is entitled for travel to and from the place designated, and one day's attendance there. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. Such service may be made by any person. En. March 11, 1872. Prac. Act, sec. 404. En. April 29, 1851. Costs where subpoena served by person other than sheriff: See post. Appendix, title Costs. § 1988. How, if witness be concealed. If a witness is concealed in a building or vessel, so as to prevent the service of a subpoena upon him, any court or judge, or any officer issuing the subpoena, may, upon proof by affidavit of the concealment, and of the materiality of the witness, make an order that the sheriff of the county serve the subpoena; and the sheriff must serve it accordingly, and for that purpose may break into the building cr vessel where the witness is concealed. En. March 11, 1872. Prac. Act, sec. 405. En. April 29, 1851. 7S1 MEANS OF PRODUCTION. 88 1989-1993 § 1989. When a witness is compelled to attend. A wit- ness is not obliged to attend as a witness before any court, judge, justice, or any other officer, out of the county in which he resides, unless the distance be less than thirty miles from his place of residence to the place of trial. En. March 11, 1872. Cal. Rep. Clt. 56, 599; 140, 8. § 1990. Person present compelled to testify. A person present in court, or before a judicial officer, may be re- quired to testify in the same manner, as if he were in at- tendance upon a subpoena issued by such court or officer. En. March 11, 1872. Prac. Act, sec. 406. En. April 29, 1851. § 1991. Disobedience, how punished. Disobedience to a subpoena, or a refusal to be sworn, or to answer as a wit- ness, or to subscribe an affidavit or deposition when re- quired, 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 or answer may be stricken out. En. March 11, 1872. Cal. Rep. Cit. 56, 599; 72, 511; 78, 373; 84, 533; 88, 623; 120, 42; 139, 472; 140, 8; 140. 12; 140, 13; 140, 14; 140, 217; 140, 219; 140, 221; 144, 160. Prac. Act, sec. 409. En. April 29, 1851. Cal. Rep. Cit. 28, 298. Refusal to answer: Post, sec. 2065. Contempt: Ante, sees. 1209 et seq. § 1992. Forfeiture therefor. A witness disobeying a subpoena also forfeits to the party aggrieved the sum of one hundred dollars, and all damages which he may sus- tain by the failure of the witness to attend, which for- feiture and damages may be recovered in a civil action. En. March 11, 1872. Cal. Rep. Clt. 135, 49; 135, 50; 135, 51. Prac. Act, sec. 410. En. April 29, 1851. § 1993. Warrant may issue to bring witness, when. In case of failure of a witness to attend, the court or officer Issuing the subpoena, upon proof of the service thereof, and of the failure of the witness, may issue a warrant to the sheriff of the county to arrest the witness and bring §§ 1994-1997 MEANS OF PRODUCTION. 781 him before the court or officer where his attendance was required. En. March 11, 1872. Cal. Rep. Clt. 116. 687. Prac. Act, sec. 411. En. April 29, 1851. § 1994. Contents of warrant. Every warrant of com- mitment, issued by a court or officer pursuant to this chapter, must specify therein, particularly, the cause of the commitment, and If It be for refusing to answer a question, such question must be stated In the warrant. And every warrant to arrest or commit a witness, pursu- ant to this chapter, miist be directed to the sheriff of the county where the witness may be, and must be executed by him in the same manner as process Issued by the supe- rior court. En. March 11, 1872. Am'd. 1880, 115. § 1995. If witness be a prisoner, how brought. If the witness be a prisoner, confined in a jail or prison within this state, 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 being orally ex- amined, may be made as follows: 1. By the court itself in which the action or special pro- ceeding Is pending, unless It be a Justice's court. 2. By a justice of the supreme court, or a judge of tho superior court of the county where the action or proceed- ing is pending. If pending before a justice's court, or be- fore a judge or other person out of court. En. March 11, 1872. Am'd. 1880, 115. Prac. Act, sec. 412. En. April 29, 1851. § 1996. On whose motion. Such order can only be made on the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality. En. March 11, 1872. Prac. Act, sec. 413. En April 29, 1851. § 1997. How examined. If the witness be Imprisoned in the county where the action or proceeding Is pending, his produQtion may be required. In all other cases hla examination, when allowed, must be taken upon deposi- tion. En. March 11, 1872. Prac. Act, sec. 414. En. April 29, 1851. 781 MANNER OF PRODUCTION. SS 2002-2005 CHAPTER ni. MANNER OF PRODUCTION. Article I. Mode of Taking the Testimony of Witnesses, }§ 2002-2006. II. Affidavits, §§ 2009-2015. III. Depositions, §§ 2019-2021. IV. Manner of Tailing Depositions out of the State, §§ 2024- 2028. V. Manner of Tailing Depositions in the State, §§ 2031-2038. VI. General Rules of Examination, 55 2042-2054. ARTICLE I. MODE OF TAKING THE TESTIMONY OF WITNESSES. § 2002. Testimony, in what mode taken. § 2003. Affidavit defined. § 2(X)4. A deposition defined. § 2005. Oral examination defined. § 2006. Deposition, how taken. § 2002. Testimony, In what mode taken. The testimony of witnesses is taken in three modes: 1. By affidavit; 2. By deposition; 3. By oral examination. En. March 11, 1872. Cal. Rep. Clt. 87, 113. Subd. 1—129, 651. Siibd. 3—129, 563. § 2003. Affidavit defined. An affidavit is a written declaration under oath, made without notice to the adverse party. En. March 11, 1872. Affidavits: Post, sees. 2009 et seq. § 2004. A deposition defined. A deposition is a written declaration under oath, made upon notice to the adverse party for the purpose of enabling him to attend and cross- examine. En. March 11, 1872. Cal. Rep. Clt. 77, 629. Depositions: Post, sees. 2019-2021; form of: Post, sec. 2006. § 2005. Oral examination defined. An oral examina- tion is an examination in presence of the jury or tribunal which is to decide the fact or act upon it, the testimony §§ 2006-2010 MANNER OF PRODUCTION. 7S4 being heard by the jury or tribunal from the lips of the witness. En. March 11, 1872. Cal. Rep. Cit. 77, 629; 132, 201. General rules of examination: Post, sees. 2042-2054. § 2006. Deposition, how taken. Deposition mnst be taken in the form of question and answer, and the words of the witness must be written down, unless the parties agree to a different mode. En. March 11, 1872. Cal. Rep. Cit. 125, 115. ARTICLE II. AFFIDAVITS. § 2009. For what purposes may be used. § 2010. Evidence of publication, what. § 2011. Filing evidence of publication. § 2012. Aflrdavits to be used In this state, before whom may be taken In this state. § 2013. Affidavit out of state, how taken. § 2014. If made in a foreign country, before whom taken. § 2015. Certificate of the clerk. If taken before a judge of a court out of this state. § 2009. For what purposes may be used. An affidavit may be used to verify a pleading or a paper in a special proceedings, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, or upon a motion, and in any other case expressly permitted by some other provision of this code. En. March 11. 1872. Cal. Rep. Cit. 129, 651; 141, 556; 142, 426. Affidavit: Post, sees. 2010, 2011. § 2010. Evidence of publication, what. Evidence of the publication of a document or notice required by law, or by an order of a court or judge to be published in a news- paper, may be given by the affidavit of the printer of the newspaper, or his foreman or principal clerk, annexed to a copy of the document or notice, specifying the times when and the paper in which the publication was made. En. March 11, 1872. Cal. Rep. Cit. 91, 437; 97, 447; 131, 252. Affidavit of publication: Ante, sec. 413. 736 MANNER OF PRODUCTION. 5§ 2011-2015 § 2011. Filing evidence of publication. If such affi- davit be made in an action or special proceeding pending in a court, it may be filed with the court or a clerk thereof. If not so made, it may be filed with the clerk of the county where the newspaper is printed. In either case, the ori- ginal aflBdavit, or a copy thereof, certified by the judge ot the court or clerk having it in custody, is prima facie evi- dence of the facts stated therein. En. March 11, 1872. Am'd. 1873-4, 388. Cal. Rep. Cit. 88, 34; 131. 252. § 2012. Affidavits to be used in this state, before whom may be taken in this state. An aflidavit to be used before any court, judge or officer of this state, may be taken be- fore any judge or clerk of any court, or any justice of the peace or notary public in this state. En. March 11, 1872. Cal. Rep. Cit. 56, 465; 128, 420; 128, 421. Prac. Act, sec. 424. En. April 29, 1851. Persons authorized to take affidavits: Ante, sec. 179, subd. 3. § 2013. Affidavit out of state, how taken. An affidavit taken in another state of the United States, to be used in this state, may be taken before a commissioner appointed by the governor of this state to take affidavits and depo- sitions in such other state, or before any notary public in another state, or before any judge or clerk of a court of record having a seal. En. March 11, 1872. Am'd. 1873-4, 389. Prac. Act, s«:. 425. En. April 29, 1851. § 2014. If made in a foreign country, before whom taken. An affidavit taken in a foreign country to be used in this state, may be taken before an embassador, minister, consul, vice-consul, or consular agent of the United States, or before any judge of a court of record having a seal, in such foreign country. En. March 11, 1872. Am'd. 1873-4, 289. Prac. Act, sec. 426. En. April 29, 1851. § 2015. Certificate of the clerk, if taken before a judge of a court out of this state. When an affidavit is taken before a judge or a court in another 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, must be certified by the clerk of the court, under the seal thereof. En. March 11, 1872. Prac. Act, sec. 427. En. April 29, 1851. {: 201»-20a MANNEU OF PRODUCTION. JM ARTICLE in. DEPOSITIONS. § 201S. Deposition, -when used. § 2020. Testimony of a witness out of the state, wImd takm. § 2021. In the state, when taken. § 2019. Deposition, when used. In all cases other than those mentioned in section two thousand and nine, where a written declaration under oath is used, it must be a depo- sition as prescribed by this code. En. March 11, 1872. Cal. Rep. Cit 83, 32. Prac. Act, sec 620. Eln. April 29, 1861, § 2020. Testimony of a witness out of the state, when taken. The testimony of a witness out of the slate may be taken by deposition, in an action, at any time after the service of the summons or the appearance of the defend- ant; and, in a special proceeding, at any tim6 after a ques- tion of fact has arisen therein. En. March 11, 1872. Cal. Rep. Cit. 140, 8. Prac. Act, sec. 432. En. April 29, 1851. Manner of taking depositions out of the state: Sees. 2024 et seq. § 2021. In the state, when taken. The testimony of a witness in this state may be taken by deposition In an action at any time after the service of the summons or the appearance of the defendant, and in a special pro- ceeding after a question of fact has arisen therein, in the following cases: 1. When the witness is a party to the action or proceed- ing, or an officer or member of a corporation which is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended; 2. When the witness resides out of the county in which his testimony is to be used, or resides in the county but 737 MANNER OF PRODUCTION. § 2024 more than fifty miles distant from the place of trial or hearing by the nearest usual traveled route; 3. When the witness is about to leave the county where the action is to be tried, and will probably continue absent when the testimony is required; 4. When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend; 5. When the testimony is required upon a motion, or in any other case where the oral examination of the witness is not required; 6. When the witness is the only one who can establish facts or a fact material to the issue; provided, that the deposition of such witness shall not be used if his presence can be procured at the time of the trial of the cause. En. March 11, 1872. Am'd. 1875-6, 105; 1877-8, 112; 1905, 137. Cal. Rep. Cit 56, 599; 83, 32; 140, 8; 140, 420. Subd. 1—74, 47; 117, 49. Subd. 2—63, 370; 74, 47. Subd. 3—74, 47. Subd. 4—74, 47. Subd. 5—129, 563. Prac. Act, sec, 428. En. April 29, 1851. Cal. Rep. Cit. 3, 97. . Deposition: Mode of taking: Sec. 2006; who may take: Sec. 179, subd. 3; in this state, manner of taking: Sees. 2031 et seq. ARTICLE IV. MAKNER OF TAKING DEPOSITIONS OUT OF THE STATH. § 2024. How taken. Justice's court. To whom directed. § 2025. I*roper Inteirogatorlea may be prepared, or may be waived by the parties. § 2025%. On oral interrogratories. § 2026. Authorities and duties of commissioner. § 2027. Trial, when postponed for reason of nonreturn of commission. § 2028. Deposition, by whom used. § 2024. How taken. Justice's court. To whom di- rected. The deposition of a witness out of this state may be taken upon a commission issued from the court under the seal of the court, upon an order of the court or a judge or a justice thereof, on the application of either party, upon five days' previous notice to the other. If the court be a justice's court, the commission shall have attached to it a certificate, under seal by the county clerk of saeh Code CivU Proc. — 47 §§ 2025, 2025% MANNBR OF PRODUCTION. 7S8 county, to the effect that the person issuing the same was an acting justice of the peace at the date of the commis- sion. If issued to any place within the United States, it may be directed to a person agreed upon by the parties, or if they do not agree, to any judge or justice of the peace or commissioner selected by the court or judge or justice issuing it. If issued to any country out of the United States, it may be directed to a minister, embas- sador, consul, vice-consul, or consular agent of the United States in such country, or to any person agreed upon by the parties. EJn. March 11, 1872. Am'd. 1873-4, 389; 1880, 115; 1891, 51. Prac. Act, sec. 433. En. April 29. 1851. § 2025. Proper interrogatories may be prepared, or may be waived by the parties. Such proper interrogatories, direct and cross, as the respective parties may prepare to be settled if the parties disagree as to their form, by the judge or officer granting the order for the 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 without written Interrogatories. EIn. March 11, 1872. Prac. Act, sec. 434. En. April 29, 1851. Interrogatories — question and answer in depositions: Ante, sec. 2006. § 2025'/2- On oral Interrogatories. When a party shall desire to take the evidence of a nonresident witness, to be used in any cause pending in this state, the party de- siring the same (or where notice shall have been given that a commission to take the testimony of a nonresident witness wiU be applied for, the opposite party, upon giving the other three days' notice in writing of his election so to do), may have a commission directed in the same manner as provided in section two thousand and twenty- four Code of Civil Procedure, to take such evidence, upon interrogatories to be propounded to the Tsitness orally; upon the taking of which each party may appear before the commission, in person or by attorney, and interrogate the witness. The party desiring such testimony shall give to ihe other the following notice of the time and place of 7"9 MANNER OF PRODUCTION. S§ 2026-2028 taking the same, to v/it: ten days, and one day in addition thereto (Sundays included) for every three hundred miles' travel from tbe place of holding the court to the place where such deposition is to be taken. When a party to at suit shall give the opposite party notice to take a deposition upon oral interrogatories, and shall fail to take the same accordingly, unless such failure be on account of the nonattendance of the witness, not occasioned by the fault of the party giving the notice, or some other unavoidable cause, the party notified, if he shall attend himself or by attorney, agreeably to the notice, shall be entitled to two dollars per day for each day he may attend under such notice, and to six cents per mile for every mile that he shall necesarily travel in go- ing to and returning from the place designated to take the deposition, to be allowed by the court where the suit is pending and for which execution may issue. En. Stats. 1903, 351. § 2026. Authorities and duties of commissioner. The commission must authorize the commissioner to admin- ister an oath to the witness, and to take his deposition in answer to the interrogatories, or when the examination is to be without interrogatories, in respect to the question in dispute, and to certify the deposition to the court, in a sealed envelope, directed to the clerk or other person designated or agreed upon, and forwarded to him by mail or other usual channel of conveyance. Ein. March 11, 1872. Prac. Act, sec. 435. En. April 29, 1S51. Certificate: Post, sec. 2032. § 2027. Trial, when postponed for reason of nonreturn of commission. A trial or other proceeding must not be postponed by reason of a commission not returned, ex- cept upon evidence, satisfactory to the court, that the testimony of the witness is necessary, and that proper dili- gence has been used to obtain it. En. March 11, 1872. Prac. Act, sec. 436. E)n. April 29, 1851. § 2028. Deposition, by whom used. The deposition men- tioned in this article may be used by either party on the §§ 2031, 2032 MANNER OF PRODUCTION. 740 trial or other proceeding against any other party giving or receiving the notice, subject to all just exceptions. En. March 11, 1872. Cal. Rep. Clt. 133, 477. Compare with sec. 2034, post. ARTICLE V. MANNER OF TAKING DEPOSITIONS IN THIS STATE. § 2031. Depositions may be taken before a Judge, etc., upon notice to the adverse party. § 2032. Manner of taking depositions. May be used by either pastf on the trial. § 2033. When deposition excluded. § 2034. A depo.sition once taken may be read at any time. § 2035. Deposition in this state to be used in other states. § 2036. How to procure witness upon commission. I 2037. How, if no commission. § 2038. Deposition, how taken. § 2031. Depositions may be taken before a judge, etc^ upon notice to the adverse party. Either party may have the deposition taken of a witness in this state, in either of the cases mentioned in section two thousand and twenty- one, before a judge or officer authorized to administer oaths, on serving upon the adverse party previous notice of the time and place of examination, together with a copy of an affidavit, showing that the case is within that sec- tion. Such notice must be at least five days, adding also one day for every twenty-five miles of the distance of the place of examination from the residence of the person to whom the notice is given, unless, for a cause shown, a judge, by order, prescribed a shorter time. When a shorter time is prescribed, a copy of the order must be served with the notice. En. March 11, 1872. Cal. Rep. Cit. 66, 391; 140, 8; 140, 13; 140, 220. Prac. Act, sec. 429. En. April 29, 1851. Am'd. 1859, 218. Cal. Rep. Cit. 3, 97; 35, 97. Subpoena issuing to take testimony before notary: Ante, sec. 1986, subd. 2. § 2032. Manner of taking depositions. iVIay be used by either party on the trial. Either i)arty may attend the examination and put such questions, direct and cross, as may be proper. The deposition, when completed, must be 741 MANNER OF PRODUCTION. §§ 2033, 2034 carefully read to the witness and corrected by him in any particular, if desired; it must then be subscribed by the witness, certified by the judge or officer taking the depo- sition, 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 officer to the clerk or such person, or transmitted through the mail, or by some safe private 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 deposi- tion be taken under subdivisions two, three, and four, of section two thousand and twenty-one, proof must be made at the trial that the witness continues absent or Infirm, or is dead. The deposition thus taken may be also read in case of the death of the witness. Kn. March 11, 1872. Cal. Rep. Cit. 63, 370; 74, 47; 74, 48; 117, 49; 121, 152; 125, 114; 129, 24; 133, 477; 140, 8; 140, 13; 140, 220. Prac. Act, sec. 430. En. April 29, 1851. Cal. Rep. Cit. 3, 97. Depositions must be in the form of question and answer, unless otherwise agreed: Ante, sec. 2006. Notice: Post, sec. 2033. § 2033. When deposition excluded. Notwithstanding the taking of a deposition, it may be excluded from the case upon proof that sufficient notice was not given to the party against whom it is offered to enable him to attend the taking thereof, or that the taking was not In all re- spects fair. En. March 11, 1872. Cal. Rep. Cit. 68, 621; 140, 8; 140, 220. § 2034. A deposition once taken may be read at any time. When a deposition has been once taken, it may be read by either party in any stage of the same action or proceeding, or in any other action between the' same parties upon the same subject, and is then deemed the evidence of the party reading it En. March 11, 1872. Cal. Rep. Cit. 65, 552; 80, 254; 83, 32; 133, 477; 140, 8. §§ 2035-2O3S MANNER OF PRODUCTION. US Prac. Act, sec. 431. En. April 29, 1851. Cal. Rep. Cit. 8, 579. Reading deposition — in another action: Sec 2028. § 2035. Deposition in this state to be used in other states. Any party to an action or special proceeding in a court, or before a judge, of a sister state, may obtain the testimony of a witness residing in this state, to be used in such action or proceeding, in the cases mentioned in the next two sections. En. March 11, 1872. Cal. Rep. Cit. 140, 3. § 2036. How to procure witness upon commission. If a commission to take such testimony has been issued from the court, or a judge thereof, before which such action or proceeding is pending, on producing the commission to a judge of the superior court, with an affidavit satisfactory to him of the materiality of the testimony, he may issue a subpoena to the witness, requiring him to appear and testify before the commissioner named in the commission, at a specified time and place. En. March 11, 1872. Am'cL 1880, 115. Cal. Rep. Cit. 140, 3. Subpoena: Ante, sees. 1985 et seq. § 2037. How, if no commission. If a commission has not been issued, and it appear to a judge of the superior court, or to a justice of the peace, by affidavit satisfactory to him: 1. That the testimony of the witness is material to either party. 2. That a commission to take the testimony of such wit- ness has not been issued. 3. That, according to the law of the state where the action or special proceeding is pending, the -deposition of a witness taken under such circumstances, and before such judge or justice, will be received in the action or proceeding; he must issue his subpoena requiring the wit- ness to appear and testify before him at a specified time and place. En. March 11, 1872. Am'd. 1880, 115. Cal. Rep. Cit. 140, 3. § 2038. Deposition, how taken. Upon the appearance of the witness, the judge or justice must cause his testi- mony to be taken in writing, and must certify and trans- 743 MANNER OF PRODUCTION. §§ 20ia-2044 mit the same to the court or judge before whom the action or proceeding is pending, in such manner as the law of that state requires. En. March 11, 1872. Cal. Rep. Cit. 125, 116; 140, 3. ARTICLE VL GENERAL RUI..E5S GF ETKAMTNATION, § 3042. Order of proof, how regralated. § 2043. "Witnesses not under examlnatloH may be excluded. § 2044. Court may control mode of Interrogation. § 2045. Direct and cross-examination defined. § 2046. Leading question defined. § 2047. When witness may refresh memory from notes. § 204S. Cross-examination, as to what. § 2049. Party producing witness, how far may Impeach his credit. § 2050. Witness, how examined. When re-examined. § 2051. How impeached. I 2052. Same. § 2053. Evidence of good character, when allowed. § 2054. Writing shown to witness may be Inspected by adverse party, § 2042. Order of proof, how regulated. The order ot proof must be regulated by the sound discretion of the court. Ordinarily, the party banning the ease must exhaust his evidence before the other party begins. En. March 11, 1872. Cal. Rep. Cit. 94, 130; 123, 408. Order of proof, reopening case, rebuttal: Ante, sec. 607. § 2043. Witnesses not under examination may be ex- cluded. If either party requires it, the judge may exclude from the courtroom any witness of the adverse party, not at the time under examination, so that he may not hear the testimony ol other witnesses. En. March 11, 1872. § 2044. Court may control mode of interrogation. The court must exercise a reasonable control over the mode of interrogation, so as to make it as rapid, as distinct, as little annoying to the -witness, and as effective for the extraction of the truth as may be; but subject to this rule — the parties may put such pertinent and legal questions as they see fit. The court, however, may stop the produc- tion of further evidence upon any particular point when §§ 2045-2048 MANNER OF PRODUCTION. T4* the evidence upon it is already so full as to preclude rea- sonable doubt. En. March 11, 1872. Cal. Rep. Clt. 63, 58; 72, 60. Duty to answer and protection of witness: Post, sees. 2065, 2066. § 2045. Direct and cross-examination defined. The ex- amination of a witness by the party producing him is denominated the direct examination; the examination of the same witness, upon the same matter, by the adverse party, the cross-examination. The direct examination must be completed before the cross-examination begins, unless the court otherwise direct. En. March 11, 1872. § 2046. Leading question defined. A question which suggests to the witness the answer which the examining party desires, is denominated a leadlHg or suggestive ques- tion. On a direct examination, leading questions are not allowed, except in the sound discretion of the court, under special circumstances making it appear that the interests of justice require it. En. March 11, 1872. Cal. Rep. Cit. 63, 58; 72, 60; 76, 349. § 2047. When witness may refresh memory from notes. A witness is allowed to refresh his memory respecting a fact, by anything written by himself or under his direc- tion at the time when the fact occurred or immediately thereafter, or at any other time when the fact was fresh In his memory and he knew that the same was correctly stated in the writing. But in such case, the writing must be produced and may be seen by the adverse party, who may, if he choose, cross-examine the witness upon it, and may read it to the jury. So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts, but such evidence must be received with caution. En. March 11, 1872. Cal. Rep. Cit. 64, 490; 68, 112; 73, 209; 77, 216; 96, 465; 97, 227; 98, 132; 101, 104; 111, 69; 116, 213; 131, 480; 132, 39; 138, 488. Inspection of writing shown to witness: Post sec. 2064. § 2048. Cross-examination, as to what. The opposite party may cross-examine the witness as to any facts stated in his direct examination or connected therewith, and in 745 MANNER OF PRODUCTION. 8§ 2049-2051 SO doing may put leading questions, but If he examine him as to other matters, such examination is to be subject to the same rules as a direct examination. En. March 11, 1872. Cal. Rep. CIt. 66, 604; 69, 172; 79, 408; 110, 418; 116, 211; 143, 162; 145, 129. Stopping further testimony: Ante, sec. 2044. § 2049. Party producing witness, how far may impeach his credit. The party producing a witness is not allowed to Impeach his credit by evidence of bad character, but he may contradict him by other evidence, and may also show that he has made at other times statements incon- sistent with his present testimony, as provided in section two thousand and fifty-two. En. March 11, 1872. Cal. Rep. Clt. 68, 586; 68, 588; 69, 172; 80, 161; 111, 628; 118, 675; 134, 619; 141, 532. ( 2050. Witness, how examined. When re-examined. A witness once examined cannot be re-examined as to the same matter without leave of the court, but he may be re-examined as to any new matter upon which he has been examined by the adverse party. And after the examina- tions on both sides are once concluded, the witness cannot be recalled without leave of the court. Leave is granted or withheld, In the exercise of a sound discretion. En. March 11. 1872. Cal. Rep. Clt. 94, 512; 105, 319; 141, 246. Recalling witness— -discretion of court: Sec. 607, subd. 8. § 2051. How impeached. A witness may be impeached by the party against whom he was called, by contradictory evidence, or by evidence that his general reputation for truth, honesty, or Integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judg- ment, that he has been convicted of a felony. En. March 11, 1872. 57, 65, 76, 96, Cal. Rep. Clt. 48, 338; 50, 234; 50, 235; 51, 600 64, 163; 65, 134 71, 196; 75, 388 86, 490; 87, 114 573; 57, 574; 58, 214; 60, 413 551; 65, 625; 68, 103; 70, 229 196; 79, 673; 81, 105; 81, 117 180; 99, 442; 100, 482; 108, 607; 118, 87; 113, 624; 116, 687; 118, 110; 118, 111; 119, 271; 121, 669; 128. 358; 124, 657; 125, 134; 125, 135; 125, 136; 133, 20; 184, 204; 134, 307; 184, 356; 134, 492; 142, S94; liB, 127; 146, 122; 147, 786; 147, 787. §§ 2052-2064 MANNER OF PRODUCTION. T4fl Good character, showing after Impeachment: Post, sec. 2053. Falsus in uno falsus In omnibus: Post, sec. 2061. § 2052. Same. A witness may also be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony; but before this can be done the statements must be related to him, with the circumstances of times, places, and persons present, and he must be aslced whether he made sucli statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them. En. March 11, 1872. Cal. Rep. Clt. 56, 6; 58, 217; 60, 413; 65, 181; 66, 180; 68, 586; 68, 588; 69, 172; 74, 898; 76, 196; 80, 161; 99, 302; 99, 834; 111, 628; 114, 55; li6, 79; 116, 220; 118, 675; 120, 175; 120, 176; 120, 666; 120, 666; 122, 17; 122, 566; 125, 136; 183, 20; 184, 857; 134, 492; 136. 360; 138, 42; 139, 157; 139, 161; 140, 156; 141. 244; 141, 582; 143, 127; 145, 775; 146, 776. § 2053. Evidence of good character, when allowed. Evidence of the good character of a party Is not admissi- ble in a civil -action, nor of a witness in any action, until the character of such party or witness has been Im- peached, or unless the issue involves his character. En. March 11, 1872. Cal. Rep. Cit. 50, 234; 65, 184; 110, 417. § 2054. Writing shown to witness may be Inspected by adverse party. Whenever a writing is shown to a witness, it may be inspected by the opposite party, and If proved by the witness must be read to the jury before his testi- mony is closed, or it cannot be read except on recalling the witness. En. March 11, 1872. Cal. Rep. Cit. 62, 145; 140, 204. Writing to refresh memory: Ante. sec. 2047. m EFFECT OF EVIDElNOa. f Mtt TITLE IV. OF THE EFFECT OF EVIDENCE. § 2061. Jury Juvlges of effect of evidence, but to be Instructed on cer- tain points. § 2061. Jury judges of effect of evidence, but to be in- structed on certain points. The jury/ subject to the con- trol of the court, In the cases specified in this code, are the judges of the effect and value of evidence addressed to them, except when it is declared to be conclusive. They are, .however, to be instructed by the court on all proper occasions: 1. That their power of judging of the effect of evidence is not arbitrary, but to be exercised with 'egal discretion, and in subordination to the rules of evidence; 2. That they are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number or against a presumption or other evidence satisfying their minds; 3. That a witness false in one part of his testimony is to be distrusted in others; 4. That the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admis- sions of a party with caution; 5. That in civil cases the affirmative of the issue must be proved, and when the evidence is contradictory the de- cision must be made according to the preponderance of evidence; that in criminal cases guilt must be established beyond a reasonable doubt; 6. That evidence is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce, and of the other to contradict; and, therefore, 7. That if weaker and less satisfactory evidence is of- fered, when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust. En. March 11, 18/2. Cal. Rep. Cit. 50, 633; 60, 148; 66, 185; 67, 403; 71, 397; 76, 196; 79, 692; 80, 603; 84, 456; 96, 181; 105, 523; 111, 14; 115, 12; 115, 14; 125, 519; 141, 231; 141, 232; 141, 233; 141, 613; 143, 393; 144, 254. Subd. 2—122, 179; 142, 655; 144, 36. Subd. 3—53, 355; 53, 494; 69, 238; 73, 515; 84, 583; 119, 507; §§ 2061, 2M5 RIGHTS AND DUTIES OF WITNESSES. 7« 121. 163; 126, 4; 131. 233; 134, 184; 138, 45; 138, 698; 141. 492; 143, 127. Subd. 4—95, 297; 98, 279; 111, 13; 119, 332; 121, 670; 131, 258; 143, 391; 144, 253. Subd. 5—55, 404; 56, 603; 65, 530; 80, 584; 84, 33; 134, 488; 136, 414. Subd. 6—120, 563; 122, 591; 122, 592; 144, 63. Subd. 7—122, 591. Province of jury — questions of fact: Post, sec. 2101. Credibility of witnesses, jury judges of: Sec. 1847, ante. Province of court: Compare sec. 608, ante, and sec. 2102, post. Admissions: Ante, sec. 1870, subd. 2. TITLE V. OF THE RIGHTS AND DUTIES OF WITNESSES. § 2064. Witnesses bound to attend when subpoenaed. § 2065. Witnesses bound to answer questions. § 2066. Right of witnesses to protection. § 2067. Witnesses protected from arrest when attending, or going or returning. § 206S. Arrest to be made void, and party making arrest liable, etc. § 2069. To raalie affidavit if arrested. § 2070. Court to discharge witness from arrest. § 2064. Witnesses bound to attend when subpoenaed. A witness, served with a subpoena, must attend at the time appointed, with any papers under his control required by the subpoena, and answer all pertinent and legal ques- tions; and, unless sooner discharged, must remain until the testimony is closed. En. March 11, 1872. Prac. Act, sec. 407. En. April 29, 1851. Subpoena: Ante, sees. 1985, 1991. Answering questions: Post, sec. 2065. Witnesses — competency, etc.: Ante, sees. 1878-1884. Examination, impeachment, refreshing memory, etc: Ante, sees. 2042-2054. Power to compel attendance: Ante, sees. 128, 177. Change of place of holding court, effect of: Ante, sec. 143. Contempt: Ante, sees. 1209 et seq. § 2065. Witnesses bound to answer questions. A wit- ness must answer questions legal and pertinent to the T4» RIGHTS AND DUTIES OF WITNESSES. §} 3066-2063 matter in issue, though his answer may establish a claim against himself; but he need not give an answer which will have a tendency to subject him to punishment for a felony; nor need he give an answer which will 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 must answer as to the fact of his previous conviction for felony. En. March 11, 1872. Cal. Rep. Cit. 71, 239; 129, 470; 145, 90. Prac. Act, sec, 408. En. April 29, 1851. Cal. Rep. Clt. 3, 249; 7, 185. Contempt: Ante, sees. 1209 et seq. § 2066. Right of witnesses to protection. It is the right of a witness to be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; to be detained only so long as the interests of justice re- quire it; to be examined only as to matters legal and pertinent to the issue. En. March 11, 1872. Cal. Rep. Cit. 71, 239; 76, 196; 116, 212; 145, 91. Compare sec. 2044. Detention of witness — unreasonable, constitutional pro- hibition of: See Const. Cal., art. 1, sec. 6. § 2067. Witnesses protected from arrest when attending or going or returning. Every person who has been, in good faith, served with a subpoena to atttend as a witness before a court, judge, commissioner, referee, or other person, in a case where the disobedience of the witness may be pun- ished as a contempt, is exonerated from arrest in a civil action while going to the place of attendance, necessarily remaining there and returning therefrom. En. March 11, 1872. Prac. Act, sec. 415. En. April 29, 1851. § 2068. Arrest to be made void, and party making arrest liable, etc. The arrest of a witness, contrary to the pre- ceding section, is void, and when willfully made, is a con- tempt of the court; and the person making it is responsi- ble to the witness arrested for double the amount of the damages which may be assessed against him, and is also liable to an action at the suit of the party serving the wit- §§ 2069, 2070 niGHTS AND DUTIES OF WITNESSES. 730 ness with a subpoena, for the damages sustained by him In consequence of the arrest. En. March 11, 1872. Prac. Act, sec. 416. En. April 29, 1851. Contempt of court: Ante, sees. 1209 et seq. § 2069. To make affidavit if arrested. An officer is not liable to the party for making the arrest in ignorance of the facts creating the exoneration, but is liable for any subsequent detention of the party, if such party claim the exemption and make an affidavit stating; 1. That he has been served with a subpoena to attend as a witness before a court, officer, or other person, speci- fying the same, the place of attendance, and the action or proceeding in which the subpoena was issued; and, 2. That he has not thus been served by his own pro- curement, with the intention of avoiding arrest; 3. That he is at the time going to the place of attend- ance, or returning therefrom, or remaining there in obe- dience to the subpoena. The affidavit may be taken by the officer, and exonerates him from liability for discharging the witness when ar- rested. En. March 11, 1872. § 2070. Court to discharge witness from arrest. The court or officer issuing the subpoena, and the court or offi- cer before whom the attendance is required, may discharge the witness from an arrest made in violation of section two thousand and sixty-seven. If the court have adjourned before the arrest, or before application for the discharge, a judge of the court may grant the discharge. En. March 11, 1872. Am'd. 1880, 116. 751 EVIDENCE IN PARTICULAR CASES. {$ 2074-2076 TITLE VI. OF EVIDENCE IN PARTICULAR CASES, AND MIS- CELLANEOUS AND GENERAL PROVISIONS. Chapter I. Evidence in Particular Cases, §§ 2074-2079. II. Proceedings to Perpetuate Testimony, §§ 2083- 2089. III. Administration of Oaths and Affirmations, §§ 2093-2097. rV. General Provisions, §§ 2101-2104. CHAPTER I. BVTDKNCE IN PARTICULAR CASES. § 2074. An offer equivalent to payment. § 2075. Whoever pays entlltled to receipt. § 2076. Objections to tender must be spcclOed. § 2077. Rules for construing description of lands. § 2078. Compromise offer of no avail. § 2079. In action for divorce, admission not sufficient. § 2074. An offer equivalent to payment. An offer in writing to pay a particular sum of money, or to deliver a written instrument or specific personal property, is, if not accepted, equivalent to the actual production and tender of the money, instrument, or property. En. March 11, 1872. Cal. Rep. Cit. 90, 585; 137, 382. Offer to compromise: Sees. 997, ante, 2078, post. Offer of performance: See Civ. Code, sees. 1485 et seq. § 2075. Whoever pays entitled to receipt. Whoever pays money, or delivers an instrument or property, is en- titled to a receipt therefor from the person to whom tne payment or delivery is made, and may demand a proper sig- nature to such receipt as a condition of the payment or de- livery. En. March 11, 1872. Debtor entitled to: Civ. Code, sec. 1499, § 2076. Objections to tender must be specified. The person to whom a tender is made, must, at the Ume, I 207T EVID'i:NCE TS FARTICULAR CASES. 752 specify any objection he may have to the money, instru- ment, or property, or he must be deemed to have waived it; and if the objection be to the amount of money, the terms of the instrument, or the amount or kind of property, he must specify the amount, terms, or kind which he requires, or be precluded from objecting afterward. En. March 11, 1872. Cal. Rep. Cit. 67, 88; 79, 43; 89, 263; 119, 102; 122, 322; 124, 39; 128, 213; 137, 288; 137, 382; 137, 383. Objections must be stated: Civ, Code, sec. 1501. § 2077. Rules for construing description of lands. The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful and there are no other sufficient circumstances to determine it: 1. Where there are certain definite and ascertained par- ticulars in the description, the addition of others which are indefinite, unknown, or false, does not frustrate the con- veyance, but it is to be construed by the first mentioned particulars. 2. When permanent and visible or ascertained bounda- ries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monu- ments are paramount. 3. Between different measurements which are incon- sistent with each other, that of angles is paramount to that of surfaces, and that of lines paramount to both. 4. When a road, or stream of water not navigable, is the boundary, the rights of the grantor to the middle of the road or the thread of the stream are included in the con- veyance, except where the road or thread of the stream is held under another title. 5. When tide-water is the boundaiy the rights of the grantor to ordinary high-water mark are included in the conveyance. When a navigable lake, where there is no tide, is the boundary, the rights of the grantor to low- water mark, are included in the conveyance. 6. When the description refers to a map, and that refer- ence is inconsistent with other particulars, it controls them if it appear that the parties acted with reference to the map; otherwise, the map is subordinate to otiier 753 TO PERPETUATE TESTIMONY. §§ «)7S-20S! definite and ascertained particulars. En. March. 11, 1872. Am'd. 1873-4, 390. Cal. Rep. Cit. 108, 185; 141, 447; 141, 450; 141, 456; 143, 96. Subd. 1—66, 86; 135, 321; 141, 452. Subd. 4— 69, 206. Subd. 6—69, 206; 141, 452. Construction of instruments, generally: Sees. 1859, 18G0. § 2078. Compromise offer of no avail. An offer of com- promise is not an admission that anything is due. En. March 11. 1872. Cal. Rep. Cit. 81, 405. Offer to compromise — after suit brought: Sec. 997. § 2079. In action for divorce, admission not sufficient. In an action for divorce on the ground of adultery, a con- fession of adultery, whether in or out of the pleadings, is not of itself sufficient to justify a judgment of divorce. En. March 11, 1872. CHAPTER II. PROCEEDINGS TO PERPETUATE TESTIMONY. § 20S3. Evidence may be perpetuated. § 20S4. Manner of application for order. § 205!."). Notice of time and place to be given. § 20.S'>. Manner of taking the deposition. § 20S7. Papers prima facie evidence. § 2(iS8. When the evidence may be produced. § 20S9. Effect of the depo.sition. § 2083. Evidence may be perpetuated. The testimony of a witness may be taken and perpetuated as provided in this chapter. En. March 11, 1872. Prac. Act, sec. 437. En. April 29, 1851. Am'd. 1859, 219. § 2084. Manner of application for order. The applicant must produce to a judge of the superior court a petition, verified by the oath of the applicant, stating: 1. That the applicant expects to be a party to an action in a court in this state, and, in such case, the names of the persons whom he expects will be adverse parties; or, 2. That the proof of some fact is necessary to perfect the title to property in which he is interested, or to estab- lish marriage, descent, heirship, or any other matter which Code Civil Proe.— «. S§ 2085, 2086 TO PERrETUATE TESTIMONY. 7M may hereafter become material to establish, though no BTiit may at the time be anticipated, or, if anticipated, he may not know the parties to such suit; and, 3. The name of the witness to be examined, his place of residence, and a general outline of the facts expected to be proved. The judge to whom such petition is presented must make an order allowing the examination, and desig- nating the oflficer before whom the same must be taken, and prescribing the notice to be given, which notice. If the parties expectant are known and reside in this state, must be personally served, and if unkno'WTi, such notice must be served on the clerk of the county where the property to be affected by such evidence is situated, or the judge mak- ing the order resides, as may be directed by him, and by publication thereof in some newspaper, to be designated by the judge, for the same period required for the publica- tion of summons. The judge must also designate in his order the clerk of the county to whom the deposition must be returned when taken. En. March 11, 1872. Am'd. 1873-4, 391; 1880, 116. Prac. Act, sec. 438. En. April 29, 1851. Am'd. 1859, 219. Cal. Rep. Cit. 37, 275. § 2085. Notice of time and place to be given. The per- son appointed by the judge to take the depositions is authorized, if a resident of this state, on receiving a copy of the order of the judge, and of the notice prescribed in the last section, with proof of its personal service or pub- lication; or, if a resident without the state, on receiving the commission mentioned in the next section, with proof of like service of publication of the notice; to take the deposition of the witness named in the order of the judge, or in the commission, or, if more than one witness is thus named, of such of them as appear before him, at the time designated, and the taking of the same may be continued from time to time. En. March 11, 1872. Am'd. 1873-4, 392. Prac. Act, sec. 439. En. April 29, 1851. Am'd. 1859, 219. § 2086. Manner of taking the deposition. The examina- tion must be by question and answer, and if the testimony is to be taken in another state, it must be taken upon a commission to be issued by the judge allowing the ex- amination, under tJie seal of the court of which he is judge, and upon interrogatories, to be settled in the same manner as in cases of depositions taken under commission in pend- ing actions, unless the parties expectant, if known, other- 755 TO PERPETUATE TESTIMONY. S$ a087-2W» wise agree. If such parties are unknown, notice of the settlement of the interrogatories shall be published in some newspaper for such time as the judge may designate. The deposition, when completed, must be carefully read to and subscribed by the witness, then certified by the officer or person taking the same, and shall then be sealed up and delivered or transmitted to the clerk of the county desig- nated in the order of the judge allowing the examination, who shall file the same when received. The judge allow- ing the examination shall file with the clerk the order for the examination, the petition on which the same was granted, with proof of service of the order and notice. En. March 11, 1872. Am'd. 1873-4, 392. Prac. Act, sec, 440. En. April 29, 1851. Am'd. 1859, 219. § 2087. Papers prima facie evidence. The petition and order and papers filed by the judge as provided in section two thousand and eighty-six, or a certified copy thereof, are prima facie evidence of the facts stated therein to show compliance with the provisions of this chapter. En. March 11, 1872. Am'd. 1873-4, 393. Prac. Act, sec. 441. En. April 29, 1851. Am'd. 1859, 219. § 2038. When the evidence may be produced. If a trial be had between the parties named in the petition as par- ties expectant, or their successors in interest, or between any parties wherein it may be material to establish the facts which such depositions prove, or tend to prove, upon proof of the death or insanity of the witnesses, or that they cannot be found, or are unable, by reason of age or other infirmity, to give their testimony, the depositions or copies thereof may be used by either party, subject to all legal objections; but if the parties attended at the examination, no objection to the form of an interrogatory can be made at the trial, unless the same was stated at the examination. En. March 11, 1872. Am'd. 1873-4, 393. Prac. Act, sec. 442. En. April 29, 1851. Am'd. 1859, 219. Cal. Rep. Cit. 3, 128. § 2089. Effect of the deposition. The deposition so taken and read in evidence has the same effect as the oral testimony of the witness, and no other, and every objec- tion to the witness or to the relevancy of any question put to him, or of any answer given by him, may be made in the same manner as if he were examined orally at the trial. En. March 11, 1872. §§ 2093-2096 OATHS AND AFFIRMATIONS. W CHAPTER III. ADMINISTRATION OF OATHS AND AFFIRMATIONS. § 2033. Judicial and certain ofRccrs authorized to administer oaths. § 'lO'Ji. Form of ordinary oath to a witness. § l!0'.i5. Form may be varied to suit witness' belief. § 'luM. Same. S 2097. Any person who prefers it may declare or afflnn. § 2093, Judicial and certain officers authorized to ad- minister oaths. Every court, every judge or clerk of any court, every justice and every notary public, and every officer or person authorize-d to take testimony in any ac- tion or proceeding, or to decide upon evidence, has power to administer oaths or affirmations. En. March 11, 1872. Cal. Rep. Cit. 56. 465; 56, 590; 64, 269; 120, 169; 128, 420. Prac. Act, sec. 443. En. April 29, 1851. Cal. Rep. Cit. 3, 97. Administration of oaths — ^by whom: Ante, sec. 128, subd. 7; ante, sec. 177, subd. 4; Pol, Code, sees. 1028, 4103, 4118. § 2094. Form of ordinary oath to a witness. An oath, or affirmation, in an action or proceeding, may be admin- istered as follows, the person who swears, or affirms, ex- pressing his assent when addressed in the following form: "You do solemnly swear (or affirm, as the case may be) 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, so help you God." En. March 11, 1872. Am'd. 1873-4, 393. Cal. Rep. Cit. 136, 337; 136, 521; 139, 601. § 2095. Form may be varied to suit witness' belief. Whenever the court before which a person is offered as a 757 GENERAL PROVISIONS. 8S ^096-2102 witness Is satisfied that he has a peculiar mode of swear- ing, connected with, or in addition to the usual form ol administration, which, in his opinion, is more solemn or obligatory, the court may, in its discretion, adopt that mode. En. March 11, 1872, Cal. Rep. Cit. 99, 569. § 2096. Same. When a person is sworn who believes in any other than the Christian religion, he may be sworn according to the peculiar ceremonies of his religion, 11 there be any such. En. March 11, 1872, Cal. Rep. Cit. 99, 569. Prac. Act, sec, 444, En. April 29, 1851. § 2097. Any person who prefers it may declare or af- firm. Any person who desires It may, at his option, in- stead of taking an oath, make his solemn affirmation or declaration, by assenting, when addressed in the following form: "You do solemnly affirm (or declare) that," etc., as in section two thousand and ninety-four. En. March 11, 1872. Prac. Act, sec. 445. En. April 29, 1851. CHAPTER IV. GENERAL. PROVISIONS. § 2101. Questions of fact, how tried. \ ^102. Questions of law addressed to the court. 5 2103. Questions of fact by court or referee. § 2104'. Moneys paid Into court. § 2101. Questions of fact, how tried. All questions of fact, where the trial Is by Jury, other than those mentioned in the next section, are to be decided by the jury, and all evidence thereon is to be addressed to them, except when otherwise provided by this code. En. March 11, 1872. Am'd. 1873-4, 394. Effect of evidence, for jury: Ante, sec. 2061. Fraudulent intent, a question of fact: Civ. Code, sec. 3442. § 2102. Questions of law addressed to the court. All questions of law, including the admissibility ol testimony, §§ 2103, 21M OBINERAL PROVISIONS. 168 the facts preliminary to such admission, and the construc- tion of statutes and other writings, and other rules of evi- dence, are to be decided by the court, and all discussions of law addressed to it. "Whenever the knowledge of the court is, by this code, made evidence of a fact, the court is to declare such knowledge to the jury, who are bound to accept it. En. March 11, 1872. Cal. Rep. Clt. 118, 625. Knowledge of the court— Scope of judicial notice: Ante, sec. 1875. § 2103. Questions of fact by court or referee. The pro- visions contained in this part of the code respecting the evidence on a trial before a jury, are equally applicable on the trial of a question of fact before a court, referee, or other officer. En. March 11, 1872. § 2104. Moneys paid into court. Whenever moneys are paid into or deposited in court, the same shall be delivered to the clerk in person, or to such of his deputies as shall be specially authorized by his appointment in writing to receive the same. He must, unless otherwise directed by law, deposit it with the county treasurer, to be held by him subject to the order of the court. The treasurer shall keep each fund distinct, and open an account with each. Such appointment shall be filed with the county treasurer, who shall exhibit it, and give to each person applying for the same a certified copy of the same. It shall be in force until a revocation in writing is filed with the county treasurer, who shall thereupon write "revoked," in ink across the face of the appointment. En. Stats. 1873-4, 394. Cal. Rep. Cit. 51, 110; 56, 306; 73, 269; 133, 532. Corresponding provision: Ante, sec. 573. The foregoing new section, and many of the foregoing amendments to the Code of Civil Procedure, are taken from "An act to amend the Code of Civil Procedure," ap- proved March 24, 1874; amendments 1873-4, 279. The amendatory act contained two other sections, in reference to the effect of the new provisions, as follows: Repealing clause — Rights preserved. Sec. 253. All provisions of law inconsistent with the provisions of this act are hereby repealed; but no rights acquired, or proceedings taken under, the provisions re- 759 GENERAL, PROVISIONS. J 2104 pealed shall be impaired, or in any manner affected by this repeal; and whenever a limitation or period of time prescribed by such repealed provisions for acquiring a right or barring a remedy, or for any other pupose, has begun to run before this act takes effect, and the same or any other limitation is prescribed by this act, the time which shall have run when this act takes effect shall be deemed part of the time prescribed by this act. Sec. 254. This act takes effect on the first day jof July, eighteen hundred and seventy-four. APPENDIX. APPEALS. An act to provide for the taking of appeals from Judg- ments or orders given or made in the courts existing on and before the first day of January, eighteen hun- dred and eighty. (Approved April 3, 1880, Stats. 1880, p. 24 (Ban. ed., p. 121).] The purpose of the act suflBciently appears from the title. BONDS. An act to facilitate the giving of bonds required by law. § 1. Incorporations for giving bonds. § 2. When corporation not accepted. § 3. Duty of insurance commis^oner. Incorporations for giving bonds. Section 1. Whenever any person who now or hereafter may be required or permitted by law to make, execute, and give a bond or undertaking, with one or more sure- ties, conditioned for the faithful performance of any duty, or for the doing or not doing of anything in said bond or undertaking specified, any head of department, board, court, judge, oflBcer, or other person who is now or shall hereafter be required to approve the suflSciency of any snch bond or undertaking, or the sureties thereon, may accept as sole and suflBcient surety on such bond or undertaking any corporation incorporated under the laws of any state of the United States for the purpose of making or guaran- teeing bonds and undertakings required by law, and which shall have complied with all the requirements of the laws of this state regulating the admission of such corporation to transact such business in this state; and all such cor- porations are hereby vested with full power and authority Ofii) 762 APPENDIX. to make and guarantee such bonds and undertakings, and shall be subject to all the liabilities and entitled to all the rights of natural persons sureties. When corporation not accepted. Sec. 2. It is further provided that the guaranty of any such company shall not be accepted by heads of depart- ments or others, as provided in section one of this act, whenever its liabilities shall exceed its assets, as ascer- tained in the manner provided in section three of this act. Duty of insurance commissioner. Sec. 3. "Whenever the liabilities of any such company shall exceed its assets, the insurance commissioner shall require the deficiency to be paid up within sixty days, and if it is not so paid up, then he shall issue a certificate showing the extent of such deficiency, and he shall pub- lish the same once a week for three weeks in a daily San Francisco paper, and thenceforth, and until such defi- oieny is paid up, such company shall not do busine.ss under the provisions of this act. And in estimating the condition of any such company, under the provisions of this act, the commissioner shall allow as assets only such as are authorized under existing laws at the time, and shall charge as liabilities, in addition to eighty per cent of the capital stock, all outstanding indebtedness of the company, and a premium reserve equal to fifty per centum of the premiums charged by said company on all risks then in force. Nothing herein contained shall apply to bonds given in criminal cases. Sec. 4. This act shall take effect immediately. [Ap- proved March 12, 1885; 1885, 114.] COSTS. An act concerning the costs in civil actions for serving summonses and subpoenas. Section 1. In all civil actions, when a summons oi sub- poena is served by a person other than the sheriff, the person so serving shall be allowed by the court issuing the process such sum as the court may think proper, not exceeding the amount allowed sheriffs by law. COSTS— COURTS. 763 Sec. 2. This act shall take effect from and after its passage. [Approved March 10, 1891; Stats. 1891, p. 56.] Act concerning costs in actions of libel and slander: See post, title Libel. COURTS. Supreme court commission was created originally by the act of March 12, 1885. It consisted of three members to hold for four years. In 1889 the commission was enlarged to five members to hold for two years. The commission has been re-created by act of the legislature every two years since that time. The commission was continued by the act of March 18, 1903: Stats. 1903, ch. 161. An act to provide that in all cities of over ten thousand inhabitants, the mayor, or other chief executive, shall not be required to act as city judge, or ex officio judge of the city court, or as justice of the peace; to provide for the abolishment of such city court, and for the transfer of the business and properties of said city court to the justice of the peace of such cit- ies, and to require such justice to finish such business, and to repeal all special acts in conflict herewith. § 1. Duties of mayor. § 2. Transfer of books, etc., to justice. Duties of mayor. Section 1. In cities of over ten thousand inhabitants, the mayor, or other chief executive thereof, shall not be required to act as justice of the peace, or to hold a city court, or to act as ex officio city judge, or to perform any of the duties of judge of the city courts; and all city courts created by law to be held by such mayor, or other chief executive of such cities, are hereby abolished. Transfer of books, etc., to justice of the peace. Sec. 2. All books, dockets, files, documents, papers, and properties of every kind whatsoever belonging to such city court, shall be transferred to the justice of the peace of said city, provided for by law, to hold the police court of such city, or if there be no such police court therein, 764 APPENDIX. then to such justice of the peace therein as may be desig- nated for such purpose by the mayor theroof; and sufli justice of the peace shall have jurisdiction of all matters heretofore brought in such city court, or of which said city court had jurisdiction; and it shall be his duty to collect all fines and charges required by law to be col- lected by such city court, and to account for and pay the same over to the treasurer of said city in the same man- ner, and at the same times and under such terms and conditions, as heretofore required of and by said city court. Said justice of the peace shall complete all such unfinished business as may be transferred to him from said city court under the provisions hereof. In the same manner as heretofore required of said city court. Sec. 3. The provisions of all acts and every special act of the legislature which conflict in any wise with this act are each and every one hereby repealed. Sec. 4. This act shall take effect and be in force at once after its passage. [Approved March 8, 1887; Stats. 1887, 51.] An act to confer upon the superior court of each county, and the judge thereof, the powers heretofore pos- sessed by the district, county, and probate courts of such county, and the judges thereof. [Approved April 3, 1880; Stats. 1880, p. 23 (Ban. ed., 115).] The object of this act sufficiently appears from its title. An act authorizing the judges of the superior court in all counties, and cities and counties, having a popula- tion of two hundred thousand inhabitants and over, to appoint a secretary. Section 1. In all counties, and cities and counties, hav- ing a population of two hundred thousand inhabitants and over, the judges of the superior court in such coun- ties, and cities and counties, may appoint a secretary, who shall receive a salary of one hundred and fifty (?150) dollars per month, and hold office at their pleasure, and shall perform such duties as may be required of him by the court or the judges thereof. Said salary shall be audited, allowed, and paid out of the general fund of such counties, and cities and counties. Sec. 2. This act shall take effect from and after Its passage. [Approved March 26, 1895; Stats. 1895, 98.] An act to provide one additional judge of the superior court of the county of Alameda. [Approved February 13, 1893; Stats. 1893, 3.] An act to provide one additional judge of the superior court of the county of Alameda. [Approved March 14, 1901; Stats. 1901, 295.] This act increased the number of judges from four to five. An act to increase the number of judges of the superior court of the county of Fresno, state of California, and for the appointment of an additional judge. [Ap- proved March 8. 1887; Stats. 1887, p. 57.] An act to facilitate the disposition of business in the su- perior court of Fresno County, by the appointment and election of a third judge of said court. [Act approved March 10, 1893; Stats. 1893, p. 125.] An act to reduce the number of judges of the superior court of the county of Fresno from three to two. [Ap- proved March 26, 1895; Stats. 1895, p. 156.] An act to provide for the appointment and election of one additional judge for the county of Humboldt. [Ap- proved March 8, 1895; Stats. 1895, p. 27.] An act to increase the number of judges of the superior court of the county of Los Angeles, state of California, and for the appointment of such additional judges. [Approved March 11, 1889; Stats. 1889, p. 130.] This act increased the number of judges in Los Angeles County from four to six. In 1887 the legislature increased the number of judges in Los Angeles from two to four. [Stats. 1887, p. 7.] An act to provide an additional judge of the superior court for the county of Mono. [Stats. 1880, p. 99.] This act was repealed March 9, 1883. [Stats. 1883, p. 62.] An act to provide one additional judge of the superior court of Mono County. [Approved February 17, 1903; Stats. 1903, ch. 28.] An act to provide one additional judge of the superior court of the county of Sacramento. [Approved March 12, 1895; Stats. 1895, p. 48.] 7«fi APPENDIX. An act to provide an additional judge of the superior court of the county of San Bernardino. [Approved March 5, 1887; Stats. 18S7, p. 19.] An act to increase the number of judges of the superior court of the county of San Diego, state of California, and for the appointment of such additional judges. [Approved February 8, 18S9; Stats. 1889, p. 5.] This act increased the number of judges from one to three. The act of March 5, 1895, (Stats. 1895, p. 24) ; afterwards reduced the number of judges to two. An act providing for an additional superior judge for the county of San Luis Obispo, and providing for his ap- pointment and salary. [Approved February 8, 1889; Stats. 1889, p. 6.] This act increased the number of judges from one to two. By the act of 1889, p. 333, approved March 19, 1889, the number was reduced to one. An act to increase the number of judges of the superior court of the county of Santa Clara, and to provide for the appointment of an additional judge. [Approved February 16, 1897; Stats. 1897, p. 7. In effect imme- diately.] This act increased the number of judges from one to two. An act providing for the election or appointment of a sepa- rate judge of the superior court for each of the coun- ties of Yuba and Sutter, and fixing and providing for the payment of the salary of each of such judges. [Ap- proved March 2, 1897; Stats. 1897, p. 48.] A bill to increase the number of judges of the superior court of the county of Tulare, and to provide for the appointment of an additional judge. [Approved March 10, 1891; Stats. 1891, p. 61.] This act increased the number of judges from one to two. Afterwards, by the act of March 26, 1895, the num- ber was reduced to one. [Stats. 1895, p. 128.] ESTA'lES OF DECH1A.SEI> PERSONS. 167 ESTATES OF DECEASED PERSONS. § 1. Right to collect deposit. § 2. Power of bank. An act to amend an act entitled "An act to authorize the husband or wife, or next of kin, of a deceased person, to collect and receive of any savings bank any deposit in such bank when the same does not exceed the sum of three hundred dollars," approved February 18, 1874. [Stats. 1895, 32.] Section 1. Section one of said act is hereby amended BO as to read as follows: Section 1. The surviving husband or wife of any de- ceased person, or if no husband or wife be living, then the next of kin of such decedent, may, without procuring let- ters of administration, collect of any bank any sum which said deceased may have left on deposit in such bank at the time of his or her death; provided, said deposit shall not exceed the sum of five hundred dollars. Sec. 2. Section two of said act is hereby amended so as to read as follows: Section 2. Any bank, upon receiving an affidavit stat- ing that said depositor is dead, and that affiant is the sur- viving husband or wife, as the case may be, or stating that said decedent left no husband or wife, and that affi- ant is next of kin of said decedent, and entitled to dis- tribution, and that the whole amount that decedent left on deposit in any and all banks of deposit in this state does not exceed the sum of five hundred dollars, may pay to said affiant any deposit of said decedent, if the same does not exceed the sum of five hundred dollars, and the receipt of such affiant shall be a sufficient acquittance therefor. Sec. 3. Any person who shall make a false affidavit in regard to the matters specified in this act, shall be deemed to be guilty of perjury. Sec. 4. This act shall take effect from and after its passage. [Became a law, under constitutional provision, without governor's approval, March 8, 1895. The original act was the same except that the amount was ?300.] f68 APPENDIX. An act supplementary to an act entitled an act to regulate the settlement of the estates of deceased persons, passed May first, eighteen hundred and fifty-one. Section 1. When it shall appear, upon the settlement of the accounts of any executor or administrator, that debts against the deceased have been paid without the afTidavit and allowance prescribed by section one hundred and thirty-one of the act to which this act is supplement- ary, and it shall be proven by competent evidtnce to the satisfaction of the probate courts that such debts wore justly due, were paid in good faith, that the amount paid was the true amount of such indebtedness over and above all payments of set-offs, and that the estate is solvent, it shall be the duty of the said court to allow the said sums so paid in the settlement of said accounts. Sec. 2. This act shall go into effect from and after its passage. [Approved March 30, 1872; 1871-2, 696.] This act was superseded by section 1632 of the Code of Civil Procedure, ante. An act authorizing certain corporations to act as execu- tor and in other capacities, and to provide for and regulate the administration of trusts by such corpor- ations. [Approved April 6, 1891; Stats. 1891, p. 490; amended 1897, p. 424.] § 1. What corporations may act as executor. § 2. Deposits made with corporation. § 3. Public administrator may malte -deposita. § 4. Court may order deposit and reduce bondfi. § 5. Responsible for Investments. § 6. Interest. § 7. Deposit of bonds with state treasvner. § 8. May mortgage real estate. § 9. Deposit, increase, and decrease of. § 10. Abstracts of title. § 11. Certificate of authority. 8 12. Semi-annual statement. § 13. Verification of statement. § 14. Duty of bank commissioners. § 15. No section. § 16. Administering oaths and examining witnesses. § 17. Duty when corporation violates law. § 18. False statement revokes authority. § 19. Retirement from business. Section 1. Any corporation which has or shall be in- corporated under the general incorporation laws of this ESTATES OF DECEASED PERSONS. 769 state, authorized by its articles of incorporation to act as executor, administrator, guardian, assignee, receiver, de- positary, or trustee, and having a paid-up capital of not less than two hundred and fifty thousand dollars, of which one hundred thousand dollars shall have been actually paid in, in cash, may be appointed to act in such capacity in like manner as individuals. In all cases in which it is required that an executor, administrator, guardian, as- signee, receiver, depositary, or trustee, shall qualify by taking and subscribing an oath, or in which an afiidavit is required, it shall be a sufficient qualification by such cor- poration if such oath shall be taken and subscribed or such affidavit made by the president or secretary or manager thereof, and such officer shall be liable for the failure of such corporation to perform any of the duties required by law to be performed by individuals acting in like capa- city and subject to like penalties; and such corporation shall be liable for such failure to the full amount of its capital stock; provided, any such appointment as guardian shall apply to the estate only, and not to the person. Such corporations shall be entitled to and shall be allowed proper compensation for all the services performed by them under the foregoing provisions of this act; but such compensation shall not exceed that allowed to natural per- sons for like services. Sec. 2. Any court, having appointed and having juris- diction of any executor, administrator, guardian, assignee, receiver, depositary, or trustee, upon the application of such officer or trustee, or upon the application of any person having an interest in the estate administered by such officer or trustee, after notice to the other parties in interest, as the court may direct, and after a hearing upon such application, may order such officer or trustee to de- posit any moneys then in his hands, or which may come into his hands thereafter, and until the further order of said court, with any such corporation, and upon deposit of such money and its receipt and acceptance by such cor- poration the said officer or trustee shall be discharged from further care or responsibility therefor. Such deposits shall be paid out only upon the orders of said court. Sec. 3. And it shall be lawful for any public adminis- trator to deposit with any such corporation doing business Code Civil Proc — 49. no APPENDIX. in the county or city and county, in which he is acting aa such administrator any and all moneys of any estate upon which he is administering, not required for the current expenses of the administration. And such deposits shall relieve the public administrator from depositing with the county treasurer the moneys so deposited with such cor- poration. Moneys deposited by a public administrator may be drawn upon the order of such administrator, counter- signed by a judge of a superior court, when required for the purpose of administration or otherwise. Sec. 4. Whenever, in the judgment of any court having jurisdiction of any estate in process of administration by any executor, administrator, guardian, assi-gnee, receiver, depositary, or trustee, the bond required by law of such officer shall seem burdensome or excessive, upon applica- tion of such officer or trustee, and after such notice to the parties in interest, as the court shall direct, and after a hearing on such application, the said court may order the said officer or trustee to deposit with any such cor- poration, for safe keeping, such portion or all of the per- sonal assets of said estate as it shall deem proper; and thereupon said court shall, by an order of record, reduce the bond to be given or theretofore given by such officer or trustee, so as to cover only the estate remaining in the hands of said officer or trustee; and the property as deposited shall thereupon be held by said corporation, under the orders and directions of said court. Any court having jurisdiction of an estate being administered by a public administrator may direct such public administrator to deposit all or any part of the moneys of the estate not required for the current expenses of the administration, with any such corporation doing business in the county or city and county where such public administrator is acting. Sec. 5. Such corporations shall not be required to give any bond or security in case of any appointment herein- before provided for, except as hereinafter provided, but shall be responsible for all investments which shall be made by it of tba funds which may be intrusted to it for investment by ^tec. court, and shall be further liable as natural persons in like positions now are, and as herein- after provided. The amount of money which any such corporation shall have ou deposit at any time shall not ESTATES OF DECEASED PERSONS. "l exceed ten times the amount of its paid-up capital and surplus, and its outstanding loans shall not at any time exceed said amount. Sec. 6. Such corporations shall pay interest upon all moneys held by them by virtue of this act, at such rate as may be agreed upon at the time of its acceptance of any such appointment, or as shall be provided by the order of the court. Sec. 7. Each corporation, before accepting any such appointment or deposit, shall deposit with the treasurer of state, for the benefit of the creditors of said corpora- tion, the sum of one hundred thousand dollars (.$100,000.00), in bon-ds of the United States, or municipal bonds of this state, or of any county, or city, or school district thereof, or in mortgages on improved and productive real estate in this state, being first liens thereon, and the real estate being worth at least twice the amount loaned thereon. The bonds and securities so deposited may be exchanged from time to time for other securities, receivable as afore- said. Said bonds of the United States, or municipal bonds of this state, or of any county, city, or school district thereof, to be registered in the name of said treasurer, ' officially, and all said securities to be subject to sale and transfer, and to the disposal of the proceeds by said treas- urer, only on the order of a court of competent jurisdiction, and as hereinafter provided. [Amendment, approved April 1, 1897; Stats. 1897, p. 424.] Sec. 8. Any such corporation, having a paid-up capital in excess of two hundred and fifty thousand dollars, may be permitted by the board of bank commissioners to mort- gage any improved and productive real estate owned by it, in excess of said amount, to the treasurer of state, for such sum as the said board may determine; and such mort- gage may be deposited with said treasurer, and, when so deposited, it shall be included in the amount of securities, hereinabove required to be deposited with said treasurer for the benefit of the creditors of said corporation. Sec. 9. So long as the corporation so depositing shall continue solvent, such corporation shall be permitted to . receive from said treasurer the interest or dividends on said deposit; provided, however, that when it shall appear to the board of bank commissioners, from the semi-annual T72 APPENDIX. report of any such corporation, that the value of the per- sonal property and cash held and possessed by such cor- poration, by virtue of the provisions of this act and any amendment thereof, exceeds ten times the amount of the deposit aforesaid, said board shall require said corporation to forthwith increase its said deposit to the sum of five hundred thousand dollars in such securities. And when- ever it shall appear to said board that the amount of per- sonal property and cash so held by any such corporation has been reduced below ten times the value of its original deposit above provided for, and said corporation Is not in any default in its duties and obligations hereunder, they shall allow such corporation to reduce its said deposit to the sum of two hundred thousand dollars, by the with- drawal of such additional deposit, until such time as an increase in its holdings shall again require an additional deposit, as hereinbefore provided. Sec. 10. When any part of such deposit Is made in bonds and mortgages, it shall be accompanied by full ab- stracts of titles and searches, and shall be examined and approved by or under the direction of the said board. The fees for an examination of title by counsel, to be paid by ■ the corporation making the deposit, shall not exceed twenty dollars for each mortgage, and the fee for each appraiser, not exceeding two, besides expenses, shall be five dollars for each mortgage. Sec. 11. It shall not be lawful for any such corporation to accept any trust or deposit, as hereinbefore provided, after the passage of this act without first procuring from the board of bank commissioners a certificate of authority, stating that such corporation has complied with the re- quirements of this act in respect to such deposit. Sec. 12. Such corporation shall file with the said board of bank commissioners, during the months of January and July of each year, a statement, under oath, of the condition of such corporation at the close of business on the thirty- first day of December and the thirtieth day of June, re- spectively, next preceding, showing its financial condition. Also, a list and brief description of the trusts held by such corporation, the source of the appointment thereto, and the amount of real and personal estate held by such corpora- tion by virtue thereof, except that mere mortgage trusts, ESTATES OF DECEASED PERSONS. TO wherein no action lias been taken by such corporation, shall not be included in such statement. The said state- ment shall also be in such form, and contain such reports, returns,, and information, as to the affairs, business, condi- tion, and resources of the corporation, as the said board may from time to time prescribe and require. Sec. 13. Such statement shall be verified by the atli- davit of one of the managing officers and two of the direct- ors or trustees of such corporation, who shall also state in such affidavit that they have examined the assets and books of such corporation for the purpose of making such statement. Any false swearing in regard to such state- ment shall be deemed perjury, and shall be subject to the punishment prescribed by law for such offense. Sec. 14. The said board of bank commissioners are hereby authorized and empowered to address any inquiries to any such corporation, or the officers thereof, in relation to its doings and conditions, or any other matter connected with its affairs; and it shall be the duty of any such cor- poration or person so addressed to promptly reply, in writing, to such inquiries; and they may also require re- ports from any such corporation at any time they may deem desirable. It shall be the duty of one or more of the bank commissioners, as designated by the commission- ers, annually, or as often as in their judgment they may deem it necessary, without previous notice, to visit and to make personal examination of the solvency of any such corporation, its ability to fulfill all its obligations, and report its condition to the attorney-general as soon as may be after such examination. Sec. 16. Such commissioners shall have power to ad- minister an oath to any person whose testimony may be required on any such examination, and to compel the appearance and attendance of any such person, for the purpose of examination, by summons, subpoena, or attach- ment, in the manner now authorized in respect to the attendance of persons as witnesses in courts of record In this state; and all books and papers which may be deemed necessary to examine by the commissioners shall be pro- duced, and their production may be compelled in like manner. Sec. 17. Whenever It shall appear to the board of bank commissioners, from any such examination or report, that 774 APrE.NDIX. any such corporation has committed any violation of law, or is conducting its business in an unsafe or unauthorized manner, they shall, by an order under their hands, direct the discontinuance of such illegal and unsafe or unauthor- ized practice, and strict conformity with the requirements of the law, and with safety and security in its transactions; and whenever any such corporation shall refuse or neglect to make any such report as hereinbefore required or to comply with any such order as aforesaid, or whenever ll shall appear to the said board that it is unsafe or inexpe- dient for any such corporation to continue to transact business, they shall communicate the facts to the attorney- general, who shall thereupon institute such proceedings against the corporation as the nature of the case may re- quire. Sec. 18. If the board of bank commissioners shall at any time have satisfactory evidence that any semi-annual statement or other report required or authorized by this act, made or to be made by any officer or officers of such corporation, is false, it shall be the duty of the said board to immediately revoke the certificate of authority granted on behalf of such corporation and mail a copy of such revocation to said corporation and to the clerk of every court of record in this state. Such revocation shall not be set aside until satisfactory evidence shall be given to said board of banc commissioners that such corporation is in substance and in fact in the condition set forth in such statement or report, and that all the requirements of this act have been complied with. Such revocation shall be sufficient cause for the removal of such corporation from any appointment held by it under the provisions of this act. Sec. 19. Any corporation which desires to retire from business under this act shall furnish to the board of bank commissioners satisfactory evidence of its release and discharge from all the obligations and trusts hereinbefore provided for; whereupon they shall revoke their certificate to such corporation, and thereupon the treasurer of state shall return to said corporation all its securities. Sec. 20. All laws and parts of laws in conflict with tiie provisions of this act are hereby repealed. INTERPRETERS. 775 Sec. 21. This act shall take effect and be in force from and after its passage. INTERPRETERS, An act to authorize the appointment of an interpreter of the Italian language and dialects, in criminal proceed- ings, in cities, and cities and counties, of one hundred thousand inhabitants. » S 1. Appointment of Interpreter. I 2. Salary. § 3. Repeal. Section 1. In all cities and cities and counties of over one hundred thousand inhabitants, where an interpreter of tLe Italian language is necessary, it shall be the duty of the mayor and police judge of such city, or city and county, and of the judge of the superior court of said city and county, or of the county in which said city is situated, or where there are more judges than one, then it shall be the duty of the presiding judge of said superior court, and the presiding judge of the police court and the mayor, to appoint an interpreter of the Italian language, who must be able to interpret the Italian language and dialects into the English language, to be employed in criminal pro- ceedings when necessary in said cities, or cities and counties. [Amendment approved March 9, 1895; Stats. 1895, p. 37.] Sec. 2. The said interpreter shall receive a salary ol one thousand five hundred dollars per annum, which shall be paid out of the general fund of such city, or city and county. Sec. 3. This act shall not repeal any act heretofore made and now in force for the appointment of interpreters, except so much of any act which may conflict with this act in the appointment of Italian interpreters. Sec. 4. This act shall take effect and be in force from and after its passage. [Approved March 12, 1885; Stats. 1885, 108; amended 1895, p. 37.] Superseded as to San Francisco by chapter I of article V of the charter of that city. 776 APPENDIX JUSTICES' CLERK. An act relating to the justices' courts in cities and counties of more than two hundred thousand population, and providing for tlie appointment of a justices' clerk and his assistants, prescribing thjir duties and fixing their compensation. [Approved March 25, 1903; Stats. 1903, ch. 3t)0. In effect immediately.] f The people of the state of California, represented in senate and assembly, do enact as follows: Section 1. The supervisors in every city and county ot more than two hundred thousand population shall appoint a justices' clerk upon the written nomination and recom- mendation of the justices of the peace of said city and county or a majority of them, who shall hold ofiice for tour years and until his successor is in like manner appointed and qualified. Sec. 2. Said justices' clerk shall take the constitutional oath of ofiice, and give bond in the sum ot ten thousand dollars for the faithful discharge of the duties of his office, and in the same manner as is or may be required of other officers of such city and county. A new and additional bond may be required by the supervisors of such city and county, whenever they may deem it necessary. Sec. 3. The justices* clerk shall have authority to ap- point one cashier, one chief deputy clerk, two deputy clerks and one messenger, for whose acts he shall be responsible on his official bond. The said appointees to hold office dur- ing the pleasure of said justices' clerk. Sec. 4. Said chief deputy clerk and said deputy clerks shall have authority to administer oaths, and take and certify affidavits in any action, suit or proceeding in the justices' courts in such city and county and generally to perform all acts which the justices' clerk himself might perform. Sec. 5. Said justices' clerk and his appointees shall receive for their official services the following salaries and no other or further compensation, payable out of the treasury of such city and county, after being allowed and audited as other similar demands are required by law to JUSTICES' CLERK— JUSTICES OF THE PEACE. 777 be allowed and audited: The said justices' clerk the sum of three thousand dollars per annum; the cashier and the chief deputy clerk each the sum of eighteen hundred dol- lars per annum; the deputy clerks fifteen hundred dollars per annum each; and the messenger twelve hundred doN lars per annum. Sec. 6. The said justices, justices' clerk and his said appointees shall be in attendance at their respective offices for the dispatch of oflBicial business, daily, except Sundays and holidays, from the hour of nine o'clock A. M. until five o'clock P. M. Sec. 7. In all actions, suits, and proceedings commenced in the justices' court in such city and county, or before any of the justices of the peace thereof, the original process shall be returnable, and the parties summoned required to appear before one of the justices of the peace, to be desig- nated by the justices' clerk, upon issuing such process. Sec. 8. All legal process of every kind in actions, suits or proceedings in said justices' court shall be issued by the said justices' clerk. Sec. 9. All other acts so far as they conflict with this act are hereby repealed. Sec. 10. This act shall take effect immediately. JUSTICES OF THE PEACE. An act fixing jurisdiction and providing compensation for justices of the peace in cities and towns. S L Powers of justice of tli« pea«e. I 2. Compensation. Powers of justices of the peace. Section 1. Justices of the peace in any township com- posed in whole or in part of an incorporated city or town, and justices of the peace in any city or town, in addition to the jurisdiction and powers now conferred upon them, are authorized and empowered to exercise all powers, duties, and jurisdiction, civil and criminal, of police judges, judges of police courts, recorders' courts, or mayors' courts within such cities. 778 APPENDIX. Compensation. Sec. 2. The compensation of the justice of the peace of any city or town, who is paid by salary, sliall be by war- rants for equal monthly payments, drawn each month upon the salary fund of such city or town if there be one; or If no salary fund be provided, then upon the general fund of such city or town, such warrants to be audited and paid as are salaries of other city officials. Sec. 3. This act shall take effect immediately. [Ap- proved March 9, 1883; Stats. 1883, 63.] Superseded by Code of Civil Procedure, section 103, ante, as amended in 1901 and 1903. An act concerning the justices' courts of the city and county of San Francisco, and the service of summons issued therefrom. Summons. Section 1. The summons issued from the justices' courts may be served and returned as provided in title five, part two, of the Code of Civil Procedure. Sec. 2. This act shall take effect from and after its pas- sage. [Approved April 3, 1876; 1875-6, 855.] Superseded by Code of Civil Procedure, section 849. An act to create a court in and for the town of Berkeley, state of California. [Approved March 27, 1895; Stats. 1895, p. 205. Declared unconstitutional by Miner v. Justices' Court, 121 Cal. 264.] LIBEL. An act concerning actions for libel and slander. § 1. Undertaking. § I. Sureties. § 3. Exception to sureties. § 4. Justification. § 5. Approval — New mortgug*. § 6. Failure to file bond. § T. Costs. Section 1. In an action for libel or slander the clerk shall, before issuing the summons therein, require a writ- ten undertaking on the part of the plaintiff in the sum ot five hundred (500) dollars, with at least two competent and sufficient sureties, specifying ttieir occupations and resi- dences, to the effect that if the action be dismissed or the defendant recover judgment, that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, or on an appeal, not exceeding the sum specified in the undertaking.- An action brought without filing the undertaking required shall be dismissed. Sec. 2. Ea^h of the sureties on the undertaking men- tioned in the first section shall annex to the same an affi- davit that he is a resident and householder or freeholder within the county, and is worth double the amount speci- fied in the undertaking, over and above all his just debts and liabilities, exclusive of property exempt from execu- tion. Sec. 3. Within ten days after the service of the sum- mons the defendants, or either of them, may give to the plaintiff or his attorney notice that they or he except to the sureties and require their justification before a judge of the court at a specified time and place, the time to be not less than five nor more than ten days thereafter, ex- cept by consent of parties. The qualifications of the sure- ties shall be as required in their affidavits. [Amendment approved April 16, 1880; Stats. 1880, p. 81.] Sec. 4. For the purpose of justification, each of the sureties shall attend before the judge at the time and place mentioned in the notice, and may be examined on o&.th touching his sufiiciency in such manner as the judge in his discretion shall think proper. The examination shall be reduced to writing if either party desires it. Sec. 5. If the judge find the undertaking sufficient, he shall annex the examination to the undertaking, and in- dorse his approval thereon. If the sureties fail to appear, or the judge finds the sureties or either of them insuffi- cient, he shall order a new undertaking to be given. The judge may also at any time order a new or additional undertaking upon proof that the sureties have become insufficient. In case a new or additional undertaking is ordered, all proceedings in the case shall be stayed until such undertaking is executed and filed, with the approval of the judge. T80 APPESJDIX. Sec. 6. If the undertaking as required be not filed in five days after the order therefor, the judge or court shall order the action to be dismissed. Sec. 7. In case plaintiff recovers judgment, he shall be allowed as costs one hundred (100) dollars, to cover coun- sel fees, in addition to the other costs. In case the action is dismissed, or the defendant recover judgment, he sball be allowed one hundred (100) dollars, to cover counsel fees, in addition to the other costs, and judgment therefor shall be entered accordingly. [Approved March 23, 1872; Stats. 1871-2, p. 533; amended 1880, p. 81.] MORTGAGES. An act to abolish attorney's fees and other charges in foreclosure suits. Attorney's fee on foreclosure to be fixed by court. Section 1. In all cases of foreclosure of mortgage the attorney's fee shall be fixed by the court in which the proceedings of foreclosure are had, any stipulation in said mortgage to the contrary notwithstanding. See. 2. All acts and parts of acts, so far as they con- flict with the provisions of this act, are hereby repealed, and this act shall take effect and be in force from and after its passage. [Approved March 27, 1874; Stats. 1873-4. 707.] PROCESS. An act concerning the execution of final process in cer- tain cases. Service of final process in new counties. Section 1. In all cases where new counties have been or may hereafter be erected, and executions, orders of sale upon foreclosures of mortgages, or other process affecting specific real estate, have been or may hereafter be adjudged by the final judgment or decree of a court or competent jurisdiction to be executed by the sheriff of the county in which such real estate was originally situated, such process may be executed by the sheriff of the new PROCESS— PUBLIC AX)MINISTRATOR. 781 county in which such real estate is found to be situated, with the like effect as if he were the sheriff of the county designated in the judgment, decree, or order of sale, to execute the same. Sec. 2. This act shall take effect and be in force from and after its passage. [Approved March 16, 1874; Stats. 1873-4, 365.J An act to declare valid writs, process, and certificates issued by the superior courts of this state, or the clerks thereof, before such courts shall have been legallv provided with seals. Writs, process, etc., declared valid. Section 1. No writ, process, or certificate issued by any superior court, or the clerk thereof, before such court shall have been legally provided with a seal, shall be invalid, if in other respects valid, by reason of the absence of a lawful seal; but every such writ, process, or certificate, whether under the seal of one of the courts abolished on the first day of January, eighteen hundred and eighty or under the private seal of the clerk, or under any other seal, or issued without a seal, shall have the same validity as if it had been authenticated by a legally adopted seal of the court out of which or by whose clerk it was issued. Sec. 2. This act shall take effect immediately. [Ap- proved March 31, 1880; 1880, 19 (Ban. ed., 62).] PUBLIC ADMINISTRATOR. The act of March 30, 1872, Stats. 1871-2, provided that if a public administrator of any county failed to qualify or to perform his duties, the coroner should be ex ofl^cio public administrator, and in case of failure to qualify or of neglect on his part, the supervisors should appoint a suitable person to act. See, ante, sec. 1726, note. APPENDIX. RECORDS. An act to transfer the records, papers, and business of the courts existing on the thirty-fiz'st day of December, eig-hteen hundred and seventy-nine, in this state, to the courts now existing therein. /' § 1. Supreme court, successor of court of same name. § 2. Superior courts, successor of what courts. § 3. Police court of San Francisco, transfer of cases to. Supreme court, successor of court of same name. Section 1. The supreme court shall, for all purposes, be considered the successor of the court of the same name which was abolished on the first day of January, eighteen hundred and eighty, and to have succeeded to all its un- finished business. It shall have jurisdiction of, and shall hear and determine, or cthei-wise dispose of, all causes, proceedings, appeals, motions, and matters pending on said day in the court superseded by it; and also, of all appeals taken to such court before or after such day, from judgments or orders of any of the inferior courts abolished by the constitution. From and after the first day of Janu- ary, eighteen hiindred and eighty, the supreme court shall have the custody of all records, books, and papers of the former supreme court, and the same jurisdiction over its judgments, orders, and proceedings as if they had in the first instance been rendered, made, or commenced in the present court. All laws relating to the former court shall, as far as applicable, be considered as applying to the pres- ent court. All rules of the former court which were in force on the first day of January, eighteen hundred and eix^hty. and not inconsistent with the constitution, shall co'ntinue in force as rules of the present court until altered, abolished, or superseded by the order of the court. Superior courts, successor of what courts. Sec. 2. The superior court of each county in this state shall for all purposes, be considered the successor of the district, county, and probate courts thereof, and, In the city and county of San Francisco, of the municipal criminal court and municipal court of appeals, and shall be deemed to have succeeded to all the unfinished business of said courts. The superior courts shall hear, determine, or otherwise dispose of, all causes and proceedings which were pending on the first day of January, eighteen hun- dred and eighty, in the said courts superseded by them, and every motion or proceeding then pendin-g or thereafter made or taken in such causes and proceedings, and of which said courts would have had juris'diction had they not been abolished; and also, all appeals taken or perfected, before or after said day, from all orders or judgments of justices' and police courts which by law are declared to be appealable. From and after the first day of January, eighteen hundred and eighty, the superior courts shall have the custody of all the records, books, and papers of the said courts superseded by them, and shall have juris- diction thereof, and of the judgments, orders and process of said courts; and shall enforce the same and issue pro- cess thereon in like manner, and with the same effect, as if they had in the first instance been filed, commenced, rendered, made, or issued in or by the superior court. The superior court of the city and county of San Francisco shall have jurisdiction of, and shall try and dispose of, all indictments for misdemeanor pending in the city crim- inal court of said city and county on the first day of Janu- ary, eighteen hundred and eighty; and such indictments and all papers and records relating thereto, shall be trans- ferred to the said superior court and become records there- of. Any application, motion, or proceeding, set by the dis- trict, county, or probate court of any county, or by the judge thereof, to be heard by such court or judge after the first day of January, eighteen hundred and eighty, may be heard in the superior court of such county, upon the same notice that was required to authorize the hearing thereof in such district, county, or probate court, or by the judge thereof. Any process issued out of any district, county, or probate court of this state before the first day of January, eighteen hundred and eighty, may be served, or the service thereof completed, after said day, in the same manner and with like effect, as if such courts had not been abolished; provided, that such process shall be returned to the supe- rior court of the county in which it was issued, and any appearance or answer required by such process shaJl be made or filed in such court. 784 APPENDIX. Police court of San Francisco, transfer of cases to. Sec. 8. All prosecutions which were transferred or cer- tified for trial to the city criminal court of the city and county of San Francisco, by the police court thereof, and were pending or undetermined on the first day of January, eighteen hundred and eighty, shall be tried and disposed of in the said police court; and all the papers, pleadings, and records relating to such prosecutions shall be trans- ferred to, and deposited with, said police court, and be- come records and papers thereof. Sec. 4. This act shall take effect immediately. [Ap- proved February 4, 1880; 1880, 2 (Ban. ed. 2).] STATE. An act to authorize suits against the state, and regulat- ing the procedure therein.* § 1. Right of action. § 2. Limitation of actions. § 3. Undertaking. § 4. Service of summons. § 5. Judgment. § 6. Duty of governor. § 7. Duty of controller. Section 1. All persons who have, or shall hereafter have, claims on contract or for negligence against the state not allowed by the state board of examiners, are hereby authorized, on the terms and conditions herein contained, to bring suit thereon against the state in any of the courts of this state of competent jurisdiction, and prosecute the same to final judgment. The rules of prac- tice in civil cases shall apply to such suits, except as here- in otherwise provided. Sec. 2. No such suit shall be maintained on any claim now existing, unless the same be brought within two years after this act takes effect; nor shall any such suit be maintained on any cause of action hereafter arising, un- less the same shall be commenced within two years after such cause of action shall have accrued; provided, that the period of limitation provided for in section two of this act shall not apply to or affect the rights, interest, or •See Mollneux v. State, 109 Cal. 378. -STATS. 785 claims of any minor or insane person, or a person impris- oned on a criminal charge, or in execution under a sen- tence of a criminal court for a period of not less than for life, or a married woman and her husband be a necessary- party with her in commencing such action, or an incom- petent person, but such action may be commenced within the period above provided for after such disability shall cease. Sec. 3. At the time of filing the complaint in any such suit, the plaintiff shall file therewith an undertaking, In such sum, not less than five hundred dollars, as a judge of the court shall fix, with two suflScient sureties, to be appi-oved by a judge of the court, and conditioned that, in case the plaintiff fails to recover judgment, he will pay all costs incurred by the state in such suit, including a reasonable counsel fee, to be fixed by the court. Sec. 4. Service of summons in such suits shall be made on the governor and attorney-general. It shall be the duty of the attorney-general to defend all such suits; and upon his written demand, made at or before the time of answer- ing, the place of trial of any such suit must be changed to the county of Sacramento. Sec. 5. In case judgment be rendered for the plaintiff in any such suit, It shall be for the amount actually due from the state to the plaintiff, with legal interest thereon, from the time the obligation accrued, and without costs. Sec. 6. It shall be the duty of the governor to report to the legislature, at each session, all judgments rendered against the state, and not theretofore reported. Sec. 7. It shall be the duty of the controller to draw his warrant for the payment of any such judgment, with- out any presentation to or approval of such claim by the state board of examiners, whenever a sufficient appropria- tion for such payment shall have been made by the legis- lature; and all claims upon such judgments are hereby expressly exempted from the operation of section six hun- dred and seventy-two of the Political Code. Sec. 8. This act shall take effect Immediately. [Ap- proved February 28, 1893; Stats. 1893, p. 57.] See Molineux v. State, 109 Cal. 378. Cod* civil Proc— 50. 786 APPENDIX. An act to authorize Robert C. Ball to sue the state of California. [Approved March 24, 1891; Stats. 1891, p. 194.] The nature of the act suflaciently appeat-s from the title. An act to enable the Coultervllle and Yosemite Turnpike Company, a corporation, to sue the s(:^.te of California for the loss and damage suffered and sustained by said corporation by the construction of a road by the Yo- semite Turnpilce Road Company, under and by virtue of an act of the legislature of the state of California, entitled, "An act granting the right of way to the Yosemite Turnpike Road Company over the Yosemite Grant," approved February 17, 1874, and for the relief of said Coultervllle and Yosemite Turnpike Company. [Approved March 31, 1891; Stats. 1891, p. 275.] The nature of the act sufllciently appears from its title. An act to authorize suits against the state concerning cer- tain real property and regulating the procedure therein. [Approved March 8, 1901; Stats. 1901, p. 111.] This allowed the claimants of real property applied for and sold to one Estell as part of the 500,000 acre grant to sue the state to quiet title. An act authorizing suits against the state on claims or demands arising under an act of the legislature, en- titled, "An act fixing a bounty on coyote scalps," ap- proved March 31, 1891, and regulating the procedure thereon. [Approved March 23, 1901; Stats. 1901, p. 646.] The purpose of the act sufficiently appears from its title. STATUTE OF LIMITATIONS. An act respecting the limitations of actions. Bankers' certificates of deposit. Section 1. Where bankers' certificates of deposit have heretofore been given to any party since deceased, and not found until after administration of his or her estate, an action may be maintained thereon by the heirs or legal STATUTE OF LIMITATIONS. 787 representatives at any time within six months after such finding. Sec. 2. This act shall take c "Zect from and after its pas- sage. [Approved March 11, 1872; 1871-2, 319.] Superseded by section 348 of the Code of Civil Procedure. An act supplementary to an act entitled an act defining the time for commencing civil actions, passed April twenty-second, eighteen hundred and fifty. No limitation to action for money deposited with bankers. Section 1. There shall be no limitation upon the right to maintain an action for the recovery of money or other property deposited with any bank, banker, trust company, or savings and loan society. Sec. 2. All acts and parts of acts in conflict herewith, so far as the same are in conflict, are hereby repealed. Sec. 3. This act shall take effect from and after its passage. [Approved March 16, 1872; Stats. 1871-2, 401.] Codified and superseded by section 348 of the Code of Civil Procedure. SUPREME COURT COMMISSION. See ante, Courts. INDEX. ABANDONMENT, action, of, nonsuit, § 581. Contractor, by, mechanic's lien, § 1200. ABATEMENT, action not abated by death, disability, or transfer, when, § 385. Nuisance, of, § 731. Pleas in, § 430. ABBREVIATIONS, use of, in judicial proceedings, § 186. ABSENCE, evidence, of, motion to postpone trial, § 595. Executor from state, § 1354. Judge, of, proceedings in case of, § 139. Justice of peace, of, reassignment and transfer of ac- tion, § 90. Order in absence of party deemed excepted to, § 647. Presiding justice of peace, substitute, § 85. Publication of summons in case of, §§ 412, 413. State, from, running of statute, § 351. Superior judge, of, authority of court commissioner, § 259. Superior judge, of holding court by another, § 160. Trial in absence of party, § 594. Waiver of jury by, § 631. Witness, of, deposition may be taken, § 2020. Witness, of, postponement of trial for, § 595. ABSENTEE, agent for, in distribution, §§ 1691-1695. Publication of summons, §§ 412, 413. ABSTRACT OF JUDGMENT in justice's court, §§ 897, 898. ABSTRACT OF TITLE in partition, §§ 799, 800, In partition, cost of allowed when, § 799. ACCIDENT, new trial on ground of, § 657. ACCOMPLICE, testimony of, to be viewed with suspicion, § 2061. ACCOUNT, delivery of copy to adverse party, § 454. General or defective, further account, § 454. How proved, § 1855. Interlocutory judgment, ordering, time to appeal, § 939. . (789) ■m ACCOUNT— ACTION. Judge may receive at chambers, § 166. Limitation of action on, § 344. Persons intrusted with decedent's estate may be cited to, § 1461. Pleading, how to state account in,. § 454. Pleading in justice's court, § 886. Reference of, § 639. Reference of, on judgment by default, § 585. Sale of decedent's property, of, return of, § 1575. Special administrator's, § 1417. Summary of, when admissible, § 1855. Surviving partner, accounting by, § 1585. Trustee's, settling after distribution, § 1699. ACCOUNTING, rents and profits after execution, for, § 707. Executor, of, § 1622. ACCUSATION, attorney, accusation against, §§ 290-297. See Attorneys. ACKNOWLEDGMENT, certificate of, as evidence, § 1948. Certificate of redemption, acknowledgment of, § 703. Court commissioner's power to take, § 259. Debt, acknowledgment so as to remove bar of stat- ute, § 360. Justice of peace may take, § 179. Justice of supreme court may take, § 179. Police judge may take, § 179. Satisfaction of judgment, of, § 675. Superior judge may take, § 179. What writings may be acknowledged, § 1948. ACTION, abatement not worked by death, disability, or transfer, when, § 385. Alienation of realty, not to prejudice, § 747. Appeal, action deemed pending, during, § 104b. Civil, arises out of obligations or injuries, § 25. Civil, definition of, §§ 22, 30. Commenced by filing complaint, § 405. Consolidation of, § 1048. Criminal, Penal Code provides for prosecution of, § 31. Deposit in court: See Deposit in Court. Determine adverse claims, to, § 1050. Dismissal of: See Dismissal. Executor or administrator may sue without joining beneficiaries, § 369. Extension of time, in general, § 1054. ACTION— ADJOURNMENT. Wl Form of, one only, § 301. Guardians, power respecting, § 1769. Interpleader, when and how maintained, § 386. Intervention, how and when effected, § 387. Is civil or criminal, § 24. Joined, what actions may be, § 427. Justices' courts, in: See Justices' Court. Limitation of, §§ 312-362. See Limitation of Actions. Lis pendens, § 409. Local, what are, § 392. Merger of civil and criminal, § 32. Misjoinder of, demurrer for, §§ 430, 444. Notice of pendency of action affecting real property, § 409. Paper with defective title, when valid, § 1046. Particular actions: See Particular Title. Parties, other, when court may order in, § 389. Parties to: See Parties. Pending, how affected by code, § 8. Pending, when deemed to be, § 1049. Place of, §§ 392-400. See Place of Trial. Real party in interest to prosecute, § 367. Realty, to recover injuries to, § 392. Realty, to recover, where brought, § 392. Receiver may bring and defend, § 568. Register of must be kept by clerk, § 1052. Register of, what to be entered in, § 1052. Remedies divided into actions and special proceed- ings, § 21. Ships, against, §§ 813-827. Special proceeding included under, in statute of limi- tation, § 363. State, acts authorizing actions against, pp. 784-786. Submitting controversy without action, §§ 1138-1140. Successive actions, § 1047. Surety by, § 1050. Survival of, statute of limitation, §§ 353, 355. Title of, § 426. Transfer of, §§ 397-400. See Place of Trial. Transitory, § 395. Trustee may sue without joining beneficiaries, § 369. When commenced, § 350. ADJOURNMENT. Amendment In justices' court, adjourn- ment on, § 859. CJonstrued as recesses and not to prevent court's sit- ting, § 74. 792 ADJOUKNMENT— ADVERSE POSSESSION. Contempt proceedings, in, § 1217. Continuance: See Continuance. Guardians have power to adjourn, § 1284. Holidays, on, § 135. In election contest, § 1121. In justice's court, §§ 873-877. Judge, absence of, § 139. Judge, failure to attend, sheriff or clerk to adjourn until what time, § 140. Trial in police court, § 931. While jury out, § 617. While jury out, sealed verdict, § 617. ADMINISTRATOR: See Executor and Administrator. ADMIRALTY: See Shipping. Judgment of court of admiralty of foreign country, conclusiveness of, § 1914. ADMISSION. Attorney, admission to practice, §§ 275-280. By failure to verify answer, § 446. Compromise, offer of, is not, § 2078. Contract set out in answer, when deemed admitted, § 448. Evidence, admission of, denial of continuance, § 595. Service of summons, of, § 415. Written instruments in complaint deemed admitted, when, §§ 447-449. ADMONITION of jury, on separation, § 611. ADULTERY, confession of, divorce, § 2079. ADVANCEMENT to heir, § 1686. See Wills, IV. ADVERSE CLAIM, personal property, to, action to deter- mine, § 1050. Quieting title, §§ 738-751. See Quieting Title. Real property, to, action to determine, § 738. ADVERSE POSSESSION, descent cast, right of possession not affected by, § 327. Disabilities excluded from time to commence actions § 328. Entry, § 320. Improvements as a setoff, § 741. ADVERSE POSSESSION— AFFIDAVIT. 791 Inclosure and boundaries, § 325. Infant, against, § 328. Judgment, under, §§ 322, 323. Landlord and tenant, presumption as to tenant's pos- session, § 326. Landlord and tenant, relation of, as affecting, § 326. Lunatic, against, § 328. Mesne profits, § 336. Mining claim, inclosure of, § 325. Occupation deemed under legal title unless adverse, § 321. Occupation under judgment, when adverse, §§ 322, 323. Occupation under written instrument, when adverse, §§ 322, 323. Possession, when presumed, § 321. Possesssion not under instrument, extends how far, § 324. Possesion of part, whether possession of whole, §§ 322, 323. Prisoner, against, § 328. Public land, effect on certificate of purchase or loca- tion, § 1925. Redemption of mortgage, §§ 346, 347. Seisin, §§ 318, 319. State, against, §§ 315, 317. Taxes, payment of, necessary to, § 325. What constitutes, under claim of title not written, § 325. Written instrument or judgment, under, §§ 322, 323. Written instrument, not founded on, §§ 324, 325. AFFIDAVIT: See Subject in Question. AflBrmations: See Affirmation. Amendment, for order to allow, § 473. Appeal, a part of record on, § 661. Arrest, for, of defendant, § 481. Arrest, for, of defendant in justice's court, § 862. Arrest, on motion to vacate, or reduce bail, § 503. Attachment, for, § 538. Attachment, for discharge of, § 557. Attachment, for, in justice's court, § 866. Before whom may be taken, § 2012. AFFIDAVIT. Before whom may be taken in another state, § 2013. Certificate to foreign, § 2015. Change of judges, for, on ground of bias, etc., § 170. Changing place of trial in justices' courts, for, § 833. Claim from exemption from jury duty, of, § 202. Continuance, on motion for, § 595. Copy of, as evidence, § 2011. Corporation, affidavit, how made, § 1348. Costs, of, § 1033. Decedent, to support claims against estate of, § 1494. Defective title to, validity, § 1046. Defendant for trial in proper county, of, § 396. Defined, § 2003. Deputy justices' clerk, authority of, to take, § 86. Election, of party contesting, § 1115. Evidence, as, § 2011. Facts constituting contempt, of, § 1211. Filed where, § 2011. Foreign country, who may take in, § 2014. Guardian's account and inventory to be sworn to, § 1773. Identity, affidavits admissible to prove, § 1379. Imprisoned witness, for order to examine, § 1996. Injunction, for vacating or modifying, § 532. Judicial officers may take, § 179. Juror may make, of misconduct of jury, § G57. Justice of peace may take, § 179. Mandamus, for, § 1086. New trial, motion for on affidavit, procedure, § C59. New trial, for, § 658. Of plaintiff denying execution of instrument, § 448. Particular proceedings, affidavits in: See Particular Title. Police judge may take, § 179. Postponement of trial, for, in absence of witness, § 595. Prejudice of, § 170. Prohibition, for, § 1103. Publication of summons, for, § 412. Publication of summons, for, as part of judgment-roll, § 670. Publication, to prove, § 2010. Redemptioner from execution, of, § 705. Referee, on objections to appointment of, § 642. AFFIDAVIT— AGENCY. 795 Replevin, in, §§ 510, 519, 520. Relief from default judgment in justice's court, for, § 859. Review, for, § 1069. Service of summons, of, § 415. State a party, when, § 446. Summons to joint debtor after judgment, for, § 991. Supreme court justice may take, § 179. Superior judge may take, § 179. Sureties of, on bond to stay money judgment, § 942. Title, want of, effect of, § 1046. Transfer of action to another justice of peace, on ground of interest, etc., for, § 90. Vacating or modifying injunction, for, § 532. Value of, in claim and delivery does not bind officer, when, § 473. Verification of pleadings, § 446. Will, of grounds for contest, § 1314. Witness, of, on his arrest, § 2069. What provable by, § 2009. When may be used, § 2009. Who may take, §§ 86, 179, 259, 2012. Who may take in another state, § 2013. Wlio may take in foreign country, § 2014. AFFINITY, appraisers, whether disqualified by, § 1444. Judge or justice, as disqualifying, § 170. Juror, as disqualifying, § 602, Meaning of, § 17. Receiver, as disqualifying, § 566. Referee, as disqualifying, § 641. AFFIRMATION, form of, § 2097. Includes oath, § 17. In place of oath, § 2097. AFFRAYS. Justice's court has jurisdiction over, § 115. AGENCY, absentee in distribution, agent for, §§ 1691-1695. Authority of agent to sell realty, to be written, § 1973. Declarations of agent, § 1870. Default judgment, examination of agent of plaintiff, § 585. Referee, relation of, disqualifies, § 641. Replevin from agent, § 512. Replevin, service of order on agent, § 512. 796 ■ AGREED CASE— AMBIGUITY. AGREED CASE, appeal lies from judgment in, § 1140. Costs prior to trial, not allowed, § 1139. How submitted, § 1138. Judgment enforceable as other judgments are, § 1140. Judgment entered, as in other cases, § 1139. Parties may submit, § 1138. Proceedings on, § 1138. What must appear, § 1138. ALAMEDA COUNTY, number of superior judges, § 66. Acts providing additional superior judges, p. 765. ALIAS, execution from justice's court, § 903. Summons from justice's court, §§ 846, 847. Summons will issue, when, § 408. Writ of possession, § 1212. ALIEN. Admission of attorney from foreign country,! 279. Limitation of actions affecting, § 354. ALIENATION, effect of on action, §§ 740, 747. ALLEGATIONS: See Answers; Complaint. Affirmative, by whom must be proved, § 1869. Burden of proof of, §§ 1869, 1981. Denials of, how made, § 437. If not controverted, deemed admitted, § 462. In particular actions: See Particular Title. In pleadings against joint debtors, § 993. Material, evidence confined to, § 1868. Material, what are, § 463. Material, only need be proved, § 1867. Negative, when must be proved, § 1869. Redundant, sham and irrelevant, striking out, § 453. To be liberally construed, § 452. Variance, §§ 469-471. When deemed admitted, § 462. When deemed controverted, § 462. ALLOWANCE for support of family of decedent, §§ 1464, 1467. How to be paid, § 1467. ALTERATION OF WRITING, party producing must ac- count for, § 1982. Of will: See Wills, VI. AMBASSADOR. Affidavit, may take, § 2014. AMBIGUITY, parol evidence to explain in writing, § 1856. AMENDMENT— ANSWER. W AMENDMENT, answer before, effect of, § 472. Bill of exceptions, to, § 650. Complaint, defendant must answer, § 432. Complaint, failure to answer, default, § 432. Complaint, filing and serving amendments, §§ 432, 472. Complaint in forcible entry, to conform to proofs, § 1173. Complaint, of, in forcible entry and detainer, § 1173. Conclusions of law, of, § 663. Demurrer, after, of course, § 472. Demurrer, before, § 472. Fictitious name, § 474. Justice's court, adjournment and costs, on amendment in, § 859. Justice's court, amendment in, § 859. Mistake in any respect, correcting by, § 473. Of course, without costs, § 472. Order allowing or refusing deemed excepted to, § 647. Pleading, of, time for, § 476. Pleading, of, when variance, §§ 469, 470. Pleadings, of, to bring in necessary parties, § 389. • Pleadings, of, on demurrer in justice's court, § 858. Pleadings, to, in general, § 473. Process, of, power of court, § 128. Statement, amendments to, §§ 659, 661. Striking out name of party, § 473. Supplemental pleadings, § 464. Terms may be imposed, § 473. To pleadings or proceedings generally, § 473. Variance, in case of, §§ 469, 470. AMICABLE ACTIONS, submission of controversy, §§ 1138- 1140. ANCHORAGE, vessels liable for, § 813. ANOTHER ACTION PENDING, ground for demurrer, § 430. ANCIENT WRITINGS, presumption of genuineness, § 1963. ANIMALS, liens arising from acts to prevent cruelty to, how enforced, § 1208. Disposition of proceeds, § 1208. ANSWER, in particular actions: See Particular Title. Abatement, plea in, § 430. Absence of, what relief granted plaintiff, § 580. Account, items of, § 454. 798 ANSWER. Allegations: See Allegations. Amendment of, § 472. Amended complaint, failure to, default, § 472. Amendeu complaint, to, time for, § 472. Amended pleading, to, § 472. Appearance, answer is, § 1014. Complaint, amended, to, § 432. Construction of, § 452. Contains what, § 437. Counterclaim, §§ 437-440. Counterclaims, may contain several, § 441. Cross-complaint, § 442. Cross-complaint, to, § 442. . Default for failure of, when entered, § 585. Defective heading to, § 1046. Defense, may contain several, § 441. Defense not raised by, waived, §§ 434, 439. Defenses must be stated separately, § 441. Demur to part, and reply to part, § 441. Demurrer and, at same time, § 431. ■ Demurrer overruled, allowing answer, § 472. Demurrer, effect on, § 472. Demurrer, matters not appearing on face of com- plaint, § 433. Demurrer, overruling, time to answer, § 476. Demurrer to, §§ 422, 443, 444. Demurrer to, effect of overruling, § 472. Demurrer to part and reply to part, § 441. Disclaimer, § 739. Filed, must be, § 465. General denial puts in issue, what, § 437. General denial, when suflBcient, § 437. Generally, § 437. Genuineness of instruments, how controverted, § 448. Genuineness of instruments, when admitted, § 447. Genuineness of instruments, when not admitted, § 449. Information and belief, denial on, § 437. Irrelevant, may be stricken out, § 453. Joint debtor brought in after judgment, of, § 992. Justice's court, in, § 852. See Justice's Court. Lost, how supplied, § 1045. Material allegations in complaint, not controvertefl deemed true, § 462. Material allegations, what are, § 463. New matter, § 437. New matter In, deemed denied, § 462. ANSWER— APPEALS. ""' Objection not appearing on complaint, may be taken by, § 433. Objections to complaint waived, when, § 434. Plea in abatement, § 430. Pleading, as a, § 422. Police court, in, oral or written, § 931. Police court, when may be made, § 931. Redundant matter, striking out, § 453. Served, must be, § 465. Shall contain what, § 437. Sham, may be stricken out, § 453. Signature to, § 446. Specific denial, when necessary, § 437. Striking out, § 453. Supplemental, when allowed, § 464. Time for, extending, §§ 473, 1054. Unverified complaint, general denial, § 437. Variance, amendment, §§ 469, 470. Verification of, § 446. Verified complaint, specific denial, § 437. Verified complaint, failure to verify answer, § 446. Waiver of objections not taken by, § 434. Waiver of summons by, § 406. What to contain, § 437. . * ^,, ,. Written Instrument, when complaint sets tortn, g9 447-449. Written instrument, setting out in, §§ 448, 449. See Pleadings. APPEALS. Appellant, definition of, § 938. Appellant, who is, § 938. Courts existing before January, 1880, appeal from, p. 761, Stats. Forcible entry, provisions relating to appeals relate to, § 1178. Judgment reviewable as code prescribes, § 936. Jurisdiction of supreme court, §§ 53, 963. See Su- preme Court. Order reviewable as code prescribes, § 936. Parties, how designated, § 938. Probate orders and decrees, provisions relating to ap- peals apply, § 1714. Probate proceedings, appeals in: See Wills, Xiu. Respondent, definition of, § 938. Respondent, who is, § 938. Who may appeal and in what cases may be taken. Agreed, case, appeal lies from judgment, § 1140. Any aggrieved party may appeal, § 938. Award, decision upon motion to modify appealable, § 1289. Award, judgment on before motion to correct not ap- pealable, § 1289. Corporation, judgment dissolving, appeal lies, § 1233. Causes in which may be taken, § 963. Distribution, appeal from proceedings in, § 1664. Election contest, appeal from, § 1126. Eminent domain, appeal in, § 1257. Heirship, appeal lies from judgment in proceedings to determine, § 1664. Judgment in cause submitted without action, appeal from, § 1140. Judgments from which may be taken, § 963. May be taken in what cases, § 963. Mechanic's lien, appeal in cases involving, § 1199. New trial, appeal from orders respecting, § 963. New trial, order for made by court without applica- tion of parties, § 662. Orders from which may be taken, § 963. Receiver, appeal from appointment of, § 963. Trustee's account after distribution, appeal from, § 1701. Special administrator, none from appointment of, § 1413. Who may appeal, § 938. Within what time to be taken. Attachment, order respecting, § 939. Change of venue, order relating to, § 939. Evidence, time for appeal to review, § 939. Final judgment, § 989. Final judgment, orders after, § 939. Heirship, appeal in proceedings to determine, § 1664. Injunctions, order respecting, § 939. Interlocutory judgment, § 939. In various cases, § 939. New trial, order relating to, time for appeal, § 939. Partition, order respecting, § 939. Probate proceedings, orders and decrees in, § 1715. APPEAT^S. Wl Receiver, order relating to, § 939. Within what time may be taken, § 939. How taken; notice, undertaking, or deposit. Deposit In lieu of un'dertaking, §§ 940, 941, 948, 949. Deposit, waiver of, § 948, How taken, § 940. Notice ot § 940. Notice of, appellant must furnish copy, §§ 950-952. Notice of, filing and serving, § 940. Trustee's account after distributi-on, appeal from, how taken, § 1701. Undertaking, attachment, on appeal from, § 94G. Undertaking, dispensing with, when appellant is execu- tor, trustee, etc., § 946. Undertaking, exception to sureties, § 948. Undertaking, executor, official bond sufficient, § 9G5. Undertaking, final bond of guardian sufficient, § 965. Undertaking, hov/ certified, § 953. Undertaking, in cases not specified, § 949. Undertaking, insufllcient, dismissal, § 954. Unxiertaking, insufficient, new bond, § 954. Undertaking, justification of sureties, § 948. Undertaking may be in one instrument or several, § 947. Undertaking necessary unless waived, § 940. Undertaking, requisites of, § 941. Undertaking, sureties, stipulation for judgment against, § 942. Undertaking, sureties, subrogation of, § 1059. Undertaking, sureties, judgment payable in specified kind of money, when, § 942. Undertaking, time of filing, § 940. Undertaking, time to file, extension of, § 1054. Undertaking to stay proceedings: See post, Effect of. Stay of Proceedings. Untlertaking, waiver of, §§ 940, 948. Undertaking, where judgment directs payment of money, § 942. Undertaking, where judgment for sale of mortgaged premises, § 945. Undertaking, where judgment directs delivery of docu- ments or personalty, § 943. Code Civil Proc — 51. Undertaking, where judgment directs appointment of receiver, § 943. Undertaking, where judgment directs sale of person- alty on foreclosure, § 943. Undertaking, where judgment directs sale or delivery of realty, § 944. Undertaking, where judgment directs execution of con- veyance or other instrument, § 944. Undertaking, where order directs issuance of alias writ of possession, § 1210. Questions, how presented for review; record on appeal. Affidavit, part of record on, § 661. Bill of exceptions, appellant must furnish, § 950. Bill of exceptions used on motion for new trial may be used on, § 950. Bill of exceptions: See Exceptions. Certificate of clerk as to correctness of transcript, § 953. Certification of undertakings and copies, § 953. Copies, how certified, § 953. Corporation, judgment-roll on appeal from judgment dissolving, § 1233. Findings of referee, how reviewed, § 645. Judgment-roll: See Judgment-Roll. Judgment-roll, appellant must furnish, § 950. Judgment-roll, what constitutes, § 670. Papers, dismissal for failure to furnish, § 954. Papers to be used on appeal from judgment, § 950. Papers to be used on appeal from judgment rendered on appeal, § 951. Papers to be used on appeal from orders, except or- ders granting or refusing new trials, § 951. Papers to be used on appeal from order granting or refusing new trial, § 952. Record on, what constitutes, § 661. Statement on: See Statement. Statement settled after motion for new trial may be used on, § 950. Effect of appeal; stay of proceedings. Action is deemed pending during, § 1049. Attachment, undertaking to continue, § 946. APPEALS. 8oa Effect of, aud the giving of security, § 946. Effect of, on attachment, § 94G. Effect of, on proceedings below, § 946. Eminent domain, effect of, § 1257. Execution, property levied on, released by, § 946. Forcible entry, appeal, effect of as stay, § 1176. Judgment for delivery of documents or personalty, stay of, what necessary, § 943. Releases property from levy, § 946. Stay of judgment on, how affects lien of judgment, § 671. Stays proceedings below, § 946. Stay, perfection of appeal is not, in what cases, § 949. Stay, perfection of appeal operates as, when, § 949. Undertaking to stay deficiency judgment, § 945. Undertaking to stay judgment appointing receiver, § 943. Undertaking to stay judgment directing foreclosure of chattel mortgage, § 943. Undertaking to stay judgment for delivery of docu- ments or personal property, § 943. Undertaking to stay judgment for execution of instru- ment, § 944. Undertaking to stay judgment for sale or delivery of realty, § 945. Un-dertaking to stay judgment of foreclosure, § 945. Undertaking to stay money judgment, affidavits of sureties, § 942. Undertaking to stay money judgment, liability of sureties, § 942. Undertaking to stay money judgment, requisites, § 942. Undertaking to stay order granting alias writ of pos- session, bond necessary, § 1210. Dismissal of appeal. Effect of, § 955. For failure to furnish requisite papers, § 954. Insufflcient undertaking, § 954. Insufficient undertaking, new undertaking, § 954. Sureties becoming insufficient, § 954. When will be dismissed, and when not, § 954. Hearing and review. Contested election cases, preference given to, § 57. I APPEALS. Errors not affecting substantial rights disregarded, § 475. Error not presumed prejudicial, § 475. Orders reviewable on appeal from judgment, § 956. Probate proceedings, preference given, § 57. Review of finding as to claims of mariners, § 826. Review, what subject to, § 956. Seamen, review of findings as to claims, § 826. What may be reviewed on appeal from judgment, § 956. Judgment on; remedial powers; reversal. Court may take what action, § 956. Decision to be in writing, § 53. Error disregarded unless substantial rights affected, § 475. Judgment: See Supreme Court. Judgment on appeal, certificate of attachment or en- try of, § 958. Judgment, when becomes final, § 4. Modifyin-g judgment on, § 957. New trial, passing on question of law Involved, § &3. Powers of supreme court, §§ 53, 957. Remedial powers of appellate court, §§ 53, 957. Reversal of order appointing guardian, validity of acts, § 966. Reversal, new action, within what time may be brought, § 355. Reversal of order appointing executor, validity of acts, § 966. Reversal not dojreed, except for substantial errors, § 475. Reversal of judgment, restitution or rights, § 957. Reversal, restitution where property sold under exe- cution, § 957. Trustee's account, decree settling conclusive on aflSxm- ance, § 1701. Rehearing and hearing in bank. Ordering case to be heard in bank, § 44. Rehearing, § 44. Costs and damages on appeal. Costs of, discretionary with court in what cases, § 1027. Costs on, how claimed and recovered, § 1034. Costs on probate appeals, discretion as to, § 1720. Costs on review, other than by appeal, § 1032. Damages, when appeal for delay, §§ 957, 980. Remittitur. Generally, § 958. Judgment to be remitted to court from which appeal taken, § 53. Remittiturs in transferred cases, § 56. Appeals from inferior courts. Superior court, bond, justification of sureties on, § 92. Superior court, cause to be tried anew, § 980. Superior court, code provisions not applying to appeals, § 959. Superior court, costs, § 980. Superior court, damages, where taken for delay, § 980. Superior court, deposit in lieu of undertaking, § 978. Superior court, dismissal, § 980. Superior court, docket of justice of peace must con- tain notice of, § 911. Superior court, docket of justice of peace to contain receipt of bond on appeal, § 911. Superior court, fine for not transmitting papers, § 977. Superior court, how taken, §§ 92, 974. Superior court, judgment, effect and enforcement of, § 980. Superior court, notice of, filing and serving, § 974. Superior court, notice filed with justice's clerk, § 92. Superior court, notice what to state, § 974. . Superior court, papers to be filed with justice's clerk, § 92. Superior court, powers of such court, § 980, Superior court, proceedings therein, § 980. Superior court, provisions of code applicable, § 980. Superior court, questions of fact, action tried anew, § 976. Superior court, questions of fact, no statement neces- sary, § 976. Superior court, questions of law, hearing, what may be referred to on, § 975. Superior court, questions of law, statement, contents of, § 975. 806 APPEALS— APPEARANCE. Superior court, questions of law, statement, time to file, § 975. Superior court, questions of law, statement, amend- ments to, § 975. Superior court, statement and amendments, settlement of, §§ 92, 975. Superior court, stay of proceedings, officers' fees, § 979. Superior court, stay of proceedings on filing undertak- ing, § 979. Superior court, sureties, exception to, and justification of, § 978. Superior court, time for appeal, §§ 939, 974. Superior court, transmission of papers, § 977. Superior court, transmission of papers, compelling the, § 977. Superior court, undertaking, requisites of, § 978. Superior court, what papers to be transmitted, § 977. Superior court, who may take, § 974. Supreme court, appeal to from justice's court, § 964, APPEARANCE, answer is, § 1014. Attorney for absent or minor heirs, § 1718. Attorney, on accusation for removal, §§ 292, 293. Bail for, on arrest for contempt, § 1213. Cures defective service, § 582. Defendant, of, equivalent to personal service, § 416. Demurrer is, § 1014. Effect of, where summons not issued or served. § 581. Eminent domain, who may appear, § 1246. Escheat, who may appear, § 1271. Guardian, by, § 1722. Joint contract, appearance where one defendant ap- pears or is served, § 406. Justice's court, trial in, when party fails to appear, § 884. Notice of, § 1014. Notice waived by, § 1306. Proceedings to compel the supplementary proceedings, § 715. Summons, time for to be inserted in, § 407. Time for, § 407. Trial of actions on, § 581. Vessels, actions against, who may appear and delenfl, § 821. APPEARANCE— ARBITRATION. 807 Waiver of findings by failure to appear, § G34. Waiver of jury trial by failure to make, § 631. Waiver of summons by, §§ 406, 416, 581. What constitutes, § 1014. APPELLANT, who is, § 936. APPLICATIONS, repeated for same order, forbidden, §§ 182. 183. APPRAISEMENT: See Estates of Decedents. Appointment of appraisers at chambers, § 166. Homestead, of, appeal from report, §§ 939, 963. Ward's estate, of, § 1773. ARBITRATION, adjournment, § 1284. All arbitrators must meet and act, §§ 1053, 1285. Appeal from, § 1289. Arbitrators, majority may determine question, § 1285. Arbitrators must be sworn, § 1285. Arbitrators, power of, to appoint time and place ot hearing, § 1284. Arbitrators, powers of, to take evidence, § 1284. Arbitrators, quorum, § 1053. Award, compelling arbitrators to make, § 1283. Award, correcting, § 1288. Award, delivery of, § 1286. Award, enforcement of, § 1283. Award, filing and entry of, § 1286. Award has effect of judgment, when, § 1286. Award, modifying, § 1288. Award, modifying or correcting, grounds for, § 1288. Award, power to make, § 1284. Award, presumption that all matters submitted passed on, § 19G3. Award, signing of, § 1286. Award to be in writing, § 1286. Award, vacation of, grounds for, § 1287. Boundaries of, § 1281. Damages on revocation, § 1290. Number of arbitrators, § 1282. Oaths by arbitrator, § 1284. Partition, § 1281. SOS ARBITRATION— ARREST AND BAIL.. Powers of arbitrators, § 1284. Quorum of arbitrators, § 1053. Subjects of, § 1281. Submission to, entry of, as order of court, § 1282. Submission to, filing with clerk and entry of, § 1283. Submission to, must be in writing, § 1282. Submission to. revocation of, § 1283. Submission to, revocation of, what may be recovered in case of, § 1290. Title to real property may not be submitted to, § 1281. What may be submitted to, § 1281. ARGUMENT, case may be brought before court for, when, § 665. Order of counsels', § 607. Reserving case for, §§ 664, 665. ARREST AND BAIL. Arrest. Administrator, arrest of, § 1449. Affidavit for, §§ 481, 862. Affidavit and order of arrest to be delivered to sheriff, and copy to defendant, § 484. Arrested party, application by, for postponement or trial in justice's court, § 876. Code prescribes only mode of, § 478. Contempt, arrest in: See Contempt. Defendant, when subject to, § 479. Discharge of persons imprisoned on civil process, §§ 1143-1154. See Prisoner. Entry of judgment in justice's court when defendant subject to, § 893. Escape, liability of sheriff, § 501. Execution, arrest on, § 682. Forcible entry and detainer, in, § 1168, For embezzlement, § 479. For fraud, § 479. Grounds for, § 479. How made, § 485. In action for fine or penalty, § 479. Justice's courts, in, §§ 8G1-865. See Justice's Court. Malicious, joinder of actions, § 427. Mandamus, disobedience of, § 1097. Manner of, prescribed by code, § 478. ARREST AND BAIL. SOU Motion to vacate, § 503. Motion to vacate, affidavit, § 503. Motion to vacate, wtien granted, § 5U4. Of debtor in supplementary proceedings, § 715. Of judgment debtor, §§ 682, 684. Order of, by whom made, § 480. Order of, filing, § 492. Order of, form of, § 483. Order of, undertaking of plaintiff, § 482. Order of, when made, § 483. Privilege of witness from, § 2067. Probate, arrest for refusal to obey citation in, § 1460. Public administrator, arrest of, § 1734. Quo warranto, in, § 804. Sheriff, return, etc., § 492. Support of prisoner, plaintiff must furnish, § 1154. Undertaking for, § 862. Vacating arrest, § 503. When defendant about to leave state, § 479. When defendant about to remove or dispose of prop- erty, § 479. When property concealed or disposed of, § 479. Witness, arrest for refusal to testify, § 1994. Witness, arrest of, when void, § 2068. Witness, liability of officer arresting, § 2069. Witness, when exonerated from arrest, § 2067. Witness, when entitled to release frorii, § 2070. Bail. Acceptance of undertaking by sheriff, § 492. Allowance of, exonerates sheriff, § 496. Allowance of, manner of, § 496. By person arrested for contempt, §§ 1213, 1215. Contempt, form and condition of bond, § 1215. Defendant discharged on, § 486. Delivery of undertaking to sheriff, § 492. Deposit, certificate of, § 497. Deposit, defendant discharged on, § 486. Deposit, how applied or disposed of, § 500. Deposit instead of bail, § 497. Deposit, payment of, into court by sheriff, § 498. Deposit, substituting bail for, § 499. Deposit when bail reduced, § 497. SIO ARREST AND BAIL^ASSIGNM liNT. Exonerated by surrender of defendant, § 488. Exonerated by death or imprisonment of defendant, § 491. Exonerated, when, §§ 488, 489. Exonerated, when not, § 489. Failure to object to, § 492. . Filing of undertaking, §§ 482, 492. Force of, § 487. How given, § 487. How proceeded against, § 490. Judgment against sheriff, proceedings on, § 502. Justification, § 494. Justification, manner of, § 495. Justification, notice, § 493. Motion to reduce, § 503. Motion to reduce, affidavit, § 503. Motion to reduce, when granted, § 504. New undertaking when other bail given, § 493. Qualifications of, § 494. Refusal by plaintiff to accept bail, § 492. Rejection of u.ndertaking by sheriff, § 492. Sheriff when liable as, and his discharge, § 501. Substituting for deposit, § 499. Surrender of defendant by, §§ 488, 489. Surrender of defendant, time for and how accom- plished, §§ 488, 489. Undertaking of bail, § 487. Undertaking of plaintiff, § 482. ASSAULT, juris'diction of justice's court, § 115. Limitation of action for, § 340. ASSEMBLY, to present impeachments, § 37. ASSESSMENT, claim and delivery, § 510. Costs of course in action involving, § 1022. Limitation of action for stock sold for, § 341. Limitation of action to contest, § 349. Value of property taken for public use, § 1248. ASSIGNMENT, chose, of, not to prejudice defense, §§ 368, 385. Cross-demand not barred by, § 440. '">t to prejudice right of setoff, § 368. ydemptioner to produce copy of, § 705. Transfer of interest does not abate action, § 385. ASSIGNMENT FOR CREDITORS— ATTACHMENTS. 811 ASSIGNMENT FOR CREDITORS, salaries and wages as preferred claims, § 1204. ASSISTANCE, bond on appeal from order directing alias writ, § 1210. Execution, § 682. Re-entry after eviction, effect of, § 1210. Re-entry after eviction, proceedings on, § 1210. Re-entry, alias writ of possession, appeal from order, stay, § 1210. Writ of, to put plaintiff in eminent domain in pos- session, § 1254. ASSOCIATION, associates may be sued in name of, § 388. Change of name, how effected, § 1276. Savings and loan, dissolution of, § 1234. ATTACHMENTS. Administrator, against, to compel at- tendance, § 1440. Appeal, effect of, undertaking, § 946. Appeal from order respecting, time for, § 939. Appeal lies from order respecting, § 963. Contempt, for, § 1212. Estate of decedent, to compel inventory of after-dis- covered property of, §1451. Executor, against, for failure to return account of sale, § 1575. Executor, against, to compel accounting, §§ 1627, 1628, 1630. Inventory of after-discovered property of decedent, to compel, § 1451. Judgment for plaintiff, how satisfied, § 550. Juror, against, to compel attendance, § 238. Justice court, attachment in, §§ 8C6-869. See Justice's Court. Preferred claims for wages, § 1206. Recorder, how to index attachments, § 542. Surviving partner, against to compel accounting, § 1585. Will, of person not producing, § 1302. Witness, of, §§ 177, 1993. Issuance, form and contents. Affidavit for, what to contain, § 538. Directed to sheriff, § 540. Form of, § 540. §12 ATTACHMENTS. Several writs may issue to different sheriffs, § 540. Time to issue, § 537. When and in what cases may issue, § 537. Writ directed to sheriff, § 540. Writ to state what, § 540. Undertaking on. Amount of, § 539. Delivered to defendant on judgment in his favor, § 553. Exception to sureties, § 539. Generally, 539. Justification of sureties, § 539. Requisites, § 539. Vacating, for failure of sureties to justify, § 539. What may be attached. Corporation, shares of stock may be attached, § 541. Debts may be attached, § 541. Materials for building not subject to, § 1196. Vessels, attachment of: See Shipping. What property subject to, § 541. Levy; property, how attached. Accounts may be collected without suit, § 547. Accounts collected, receipt of sheriff for, § 547. Attorney to give written instructions what to attach, § 543. Credits, how attached, § 542. Custody, personal property must be taken in, when, § 542. Debts and credits attached, to be collected, § 547. Debts, how attached, § 542. Personal property, how attached, § 542. Personal property not susceptible of manual delivery, how attached, § 542. Personal property susceptible of manual delivery, how attached, § 542. Real property, how attached, § 542. Recorder to Index attachment of realty, § 542. Shares of stock, how attached, § 542. Garnishment. Credits or personalty in possession of third person, attachment of, § 543. Examination of defendant on oath, § 545. ATTACHMENTS. 8U Examination of defendant, delivery of 'property to sheriff after, § 545. Garnishee, citation to appear, § 545. Garnishee, examination of, on oath, § 545. Garnishee, not delivering up property, liability of, § 544. Garnishee, service on, §§ 542, 543. Memorandum of credits, garnishee, to give, § 546. Memorandum, party refusing, to pay costs, § 546. Claim of property; preferred claims. Third person, property claimed by, how tried, § 549. Wages, claim for, preferred, § 1206. Release; discharge; judgment for defendant. Delivery to defendant when judgment in his favor, § 553. Discharge of, at what time may be moved for, § 556. Discharge of, for irregularity, § 558. Discharge of, grounds for, §§ 556, 558. Discharge of, motion for, §§ 554, 556. Discharge of, motion for, afhdavits, § 557. Discharge of, motion for, amendment for irregularity, § 558. Discharge of on judgment for defendant, § 553. Judgment for defendant, what to be delivered to him, § 553. Release of, delivery of property and proceeds to de- fendant, § 554. Release of, on giving undertaking, § 554. Release of, on real property, manner of, § 560. Release of, on real property, recording, §§ 559, 560. Release of, proceedings for, § 554. Release of, proceedings for, before whom taken, § 554. Release of, undertaking for, §§ 554, 555. Release of, undertaking of defendant, § 555. Release of, undertaking for, justification of sureties, §§ 554, 555. Release of, upon what terms granted, § 555. Release of, when granted, §§ 554, 555. Undertaking of defendant, § 540. Undertaking by defendant, when suit may bo brought on, § 552. JU ATTACHMENTS— ATTORNEY. Sale of property; disposition of proceeds; increase or deficiency. Balance due, execution for, §§ 550, 551. Balance due, how collected, §§ 551, 552. Delivery of property or proceeds to defendant when judgment satisfied, §§ 550, 551. Perishable property, how sold, § 547. Perishable property, proceeds of, § 550. Sale of property, manner of, § 548. Sale of property, notice, §§ 548, 550. Sale of property may be as under execution, § 548. Sale of property under execution, § 550. Sale of property where interests of parties require, § 548. Inventory and return by sheriff. Inventory, how made. § 546. Inventory, full, sheriff to make, § 546. Memorandum of property, §§ 545, 546. Return of writ, manner of, § 559 Return of writ, time for, § 559. ATTORNEY, absence of, postponement of trial for, § 595. Argument, order of. at trial, § 607. Contempt for assuming- to be, § 1209. Contempt for practicing without license. S 281. Conviction of crime, certificate thereof to supreme court, § 2S8. Death of, notice to appoint substitute, § 286. Exemption from jury duty, § 200. Fees for in administration of estates. §§ 1616, 1619. Judge pro tempore, attorney may be selected to act as, § 72. Legislature, extension of time during attendance on, § 1054. Privileged communications, § 1881. Roll of, how kept, § 2S0. Supreme court, of, who are, § 275. Witness, as, § 1881. Admission; license; who may act as; disqualification. Admission after examination, § 277. Admission, examination of candidates for, § 276. Admission, certificate of and license, § 277. Admission, oath on, § 278. ATTORNEY. 815 Admission, qualifications of, § 275. Admission of, from other state or country, § 279. Admission, who may be admitted as, § 275. Disqualification of county clerk to practice, § 171. Disqualification of judge to practice, § 171. Disqualification, judge or justice having acted as, § 170. Disqualification, receiver, attorney disqualified to be, when; § 5C6. Examination of, § 276. Hasting's College of Law, effect of diploma from, § 280a. License of, §§ 277-279. License, oath of, indoisement of on, § 278. License, practicing without is contempt, § 281. License, practicing without, penalty for, § 281. List of, clerk of district court of appeals to transmit to supreme court, § 280. Roll, attorney must sign, § 280. Who may act as in justice's court, § 842. Who may not act as in justice's court, § 96. Who may act as in police court, § 281. Compensation of. Compensation of, left to parties, § 1021. Fee on bond in action in condemnation, § 1251. Fees in action involving mechanic's lien, § 1195. Fees in escheat proceedings, § 1271. Fees in foreclosure suit, § 726. Fees in partition, §§ 796, 798. Fees in suit by executor on claim against estate, § 1510. Fees where injunction vacated or dissolved in case involving waters, § 532. Appointment of. Absent or minor heirs, appointment of, § 1718. Appointment of, to represent party in partition, § 763. Probate court, appointment by, §§ 1307, 1718. Will contest, appointment on, § 1307. Change and substitution of. Ceasing to act, notice to appoint substitute, § 286. Death of attorney, notice to appoint substitute, § 286. Removal of, notice to appoint substitute, § 286. Substitution, how made, § 284. Substitution, notice of, § 285. Duties and powers of. Attachment, in, to give written instructions what to at- tach, § 543. tM ATTORNEY. Authority of, § 283. Authority to acknowledge satisfaction of judgment, § 283. Authority to bind client, § 283. Authority to receive money, and discharge claim, § 283. Contempt, neglect or violation of duty, a, § 1209. Duties of, § 282. Pleadings, subscribing and verifying, § 446. Replevin, may require sheriff to take property in, § 511. Retraxit, authority to enter, § 581. Satisfaction of judgment by, § 675. Service of intervention on, § 387. Service on, for nonresident, § 1015. Service on, manner of, § 1011. Stipulations of, § 283. Verification of pleading by, § 446. Removal or suspension. Accusation to be verified, § 291. Accusation to be vv-ritten, § 290. Accusation, objection, no particular form necessary, § 2S5. Accusation, demurrer to, § 295. Accusation, what must state, § 291. Accusation, objection to, to be written, § 295. Accusation, answer to, § 296. Accusation, answ-er or objection to, § 294. Accusation, denial of, may be oral without oath, § 295. Accusation, refusal to answer, proceedings on, § 297. Appearance, § 293. Appearance, want of, proceedings on, § 293. Appearing without authority, § 287. Citation, § 292. Conviction of crime, removal for, § 287. Grounds for, § 287. Judgment, § 299. Lending name to another, removal for, § 287. Plea of guilty, proceedings on, § 297. Proceedings, how instituted, § 289. Proceedings taken upon information of another, when, § 289. Proceedings, when to be taken by court, § 289. Reference to take deposition, § 298. Striking name from roll, § 299. Trial, § 297. ATTORNEY-GENERAL— BILL, OF COSTS. S17 ATTORNEY-GENERAL, escheated estates, duties of, rela- tive to, §§ 1269-1272. Need not verify pleadings, § 446. Power and duties of, prescribed by Political and Penal Cedes, § 262. Usurping olBce or franchise, action by against party, §§ 803-819. Usurpation of office: See Usurpation of Office. AUCTION. Bids: See Bids. Execution ?ale to be at, § C94. Partition sale to be at, §'775. Sale of attached vessel at, § 824. Sales at. memorandum of auctioneer, § 1973. ANCIETn'T facts, evidence of common reputation, as to, § 1870. AWA.RD of arbitrators, §§ 1286 et seq. See Arbitration. BAGGAGE, sheriff may not interfere v/ith, on attachment of vessel. § 820. BAIL: See Arrest and Bail. BAILIFF of supreme court, §§ 265, 266. BANK. Banking corporation not to use name of friendly society, § 1276. Dissolution, deposits and dividends, S 1234. Limitation of action against, for deposit, § 348. Limitation in action for payment of forged or raised, § 340. Next of kin, act nllcwing collection of deposit by, § 768. BANKRUPTCY. Law governing insolvent debtors, § 1822. BATTERY, jurisdiction of justice's court, § 115. Limitation of action for, § 340. BERKELEY, act creating justice's court in, p. 778. BENEFICIARY need not be joined as plaintilT, § 369. BIBLE, family, entries in, as evidence, § 1870. BID, execution sale, at, § 694. Liability of sheriff, § 697. Officer may refuse, § G96. Probate sale, hov/ received at, §§ 1549, 1550. Refusal to pay, §§ 695-697. BILL OF COSTS, verifying and filing, § 1033. Code Civil Proc— 52. 818 BIT^L OF EXCHANGE-BOND. BILL OF EXCHANGE: See Negotiable Instruments. Complaint may be copy of, § 853. BILL OF EXCEPTIONS: See Exceptions. BILL OF PARTICULARS, further, § 454. Need not be pleaded, § 454. BIRTH, declarations of decedent relating to, § 1870. BLANK in papers issued by justice of peace must be filled, § 920. BOARD, majority may act, § 15. BOARD OF SUPERVISORS, selection of jurors, § 204. BOAT: See Shipping. BOND: See Suretyship; Undertaking. Action on, justice's jurisdiction, § 112. Administrator's sale, bond of purchaser at, § 1567. Administrator's: See Executor and Administrator. Agent for absentee in distribution proceedings, of, §§ 1692, 1695. Appeal: See Appeal. Approval by judge at chambers, § 166, Chambers, judge may approve at, § 166. Contractor, of, § 1203. Corporation as surety, §§ 1056, 1057. Corporation as surety, statute authorizing, pp. 762, 763. Court commissioner, power to take and approve, § 259. Eminent domain, security for the building of fences, etc., § 1251. Executor's: See Executor and Administrator. Guardian's: See Guardian. Injunction, bond on, vacation or modification of, § 532. Injunction, respecting waters vacated, bond in case of, § 532. Justice's clerk, of, § 86. Libel and slander, bond to cover costs in, p. 778, Stats, Limitation in action on, § 340. Municipalities need not give, § 1058. Not required of state, county, city, town, or officer, § 1058. Officer need not give, § 1058. Partial distribution of decedent's estate, for, §§ 1658, 1661, 3662. Public administrator's, § 1727. Qualifications of sureties, § 1057. Requisites of, in general, § 1057. BOND— BURIAL GROUND. 810 Several actions on, costs and disbursements in case of, § 1023. State or municipalities need not give, § 1058. Vacation or modification of injunction, § 532. BOOKS as evidence. § 1936. Containing published decisions, admissible, § 1902, Entries in official, evidence, § 1920. Historical books prima facie evidence, § 1936. Inspection may be ordered and copy given, § 1000. Judgment book to be kept, § 668. Law, presumed correct, §§ 1900, 1963. Presumed published by authority, § 1963. Presumption of correctness of, § 1963. Presumption as to books purporting to contain reports of decisions, § 1963. Science or art, books of, prima facie evidence, § 1936. '30UNDARY, adverse posbession, § 325. Arbitration, § 1281. Change of, succession of justices of peace, § 107. Common reputation, evidence, when admissible, § 1870. Conflicting, which prevail, § 2077. Description in deeds, § 2077. Determination of. to lands, § 2077. Evidence as to, § 1870, Lake as, § 2077. Maps, reference to, § 2077, Monuments, § 2077. Navigable waters as, § 2077. Non-navigable streams as, § 2077. Road as, § 2077. Rules for determining, § 2077. Tide water as, § 2077, BREACH OF PEACE, jurisdiction, § 115. Contempt, when, § 1209. BREACH OF PROMISE, to marry, sitting of court, private, § 125. BUILDING AND LOAN ASSOCIATION, exemption of shares of stock, § 690. BUILDING CONTRACT: See Mechanic's Lien. BUILDINGS: See Public Buildings. Mechanics' liens: See Mechanic's Lien. BURIAL GROUND, presumption of dedication of, § 1963, 820 BURDEN OF PROOF— CERTIORARI. BURDEN OF PROOF, who has, §§ 1981, 1982. CALENDAR, causes must remain on, till when, § 593. Clerk must enter causes on, § 593. Dropping causes from, § 593. Restoring causes to, § 593. CAPACITY. Want of a ground of demurrer, § 430. CARRIER, vessels, liability of on contract to carry, § 813. CATTLE-GUARDS, eminent domain, §§ 1248, 1251, 1257. CASE AGREED. Controversy without action, §§ 1138-1140. CEMETERY, presumption that site dedicated for, § 1963. CERTIFICATE. Acknowledgment, certificates of, § 1948. Appeal, certificate to transcript, § 953. Attorney's admission and license, of, §§ 277, 278. Clerk's, of jurors drawn, § 219. Deposit, instead of bail, certificate of, § 497. Evidence, as, §§ 1901-1907. Evidence, certificate of copy judicial record of foreign country for, §§ 1906, 1907. Evidence, certificate of copy document for, generally, §§ 1919, 1922-1924. Evidence, certificate of copy judicial record of this state or United States for, § 1905. Evidence, certificate of written law or public writing of any country for, § 1901. Execution sale, of, §§ C98, 699, 700, 1905, 1906. Location, of, as evidence of ownership of land, § 1925. Phonographic reporter's competency, of, § 270. Proof of will, of, §§ 1317, 1318. Purchase, of, as evidence of ownership of land, § 1925. Recording officer, of, is prima facie evidence, § 1833. Redemption of, § 703. Service of summons, of, § 415. Writing, certificate to, form of, and how executed, § 1923. CERTIFIED COPIES, custodian of public writing bound to give, § 1893. Judicial record of foreign country, of, § 1907. CERTIORARI: See Review. Defined, § 1067. Superior court or judge may issue, J 76. Supreme court may issue, §§ 51, 54. Supreme court justice may not grant at chambers, § 165. CESTUI QUE TRUST— CITIZEN. «21 CESTUI QUE TRUST: See Trust. Need not be joined as plaintiff, § 369. CHALLENGE: See Jurors. CHAMBERS, power of judges at, §§ 165, 166. Power of court at, §§ 176, 1305. Writs and process necessary may be issued at, § 166. CHANGE OF NAME: See Name. CHARACTER, good, admissibility of evidence of, § 2053. CHARTS as evidence, § 1936. CHATTEL MORTGAGE, undertaking on appeal from or- der of foreclosure, § 943. CHECKS. Limitations in action on forged or raised check § 340. CHIEF JUSTICE: See Supreme Court Justices. CHILDREN: See infants. CHOSE IN ACTION, assignment of, not to prejudice de- fense, § 368. CITATION, administrator, to, on revocation of letters, §§ 1384, 1385. Administrator, to show cause why further security should not be given, §§ 1398, 1402. Attorney, to answer accusation, § 292. Election contest, to respondent, § 1119. Executor, to, to render account, §§ 1623-1625, 1628. Executor, legatees, etc., to, on contest of will after probate, § 1328. Garnishee, to, § 545. Heirs resident in county, to, § 1304. Persons intrusted with decedent's estate to account, to, § 1461. Person, suspected of embezzling decedent's estate, to, §§ 1459, 1460. Probate, in, how directed and what to contain, § 1707. Probate, in, how issued and served, §§ 1708, 1709, 1711. Sureties on administrator's bond, to, § 1394. Sureties, on application for new, §§ 1398-1402. Sureties, on application for release, § 1403. Time for service, § 1711. CITIZEN, bailiits and secretaries of supreme court shall be, § 265. Justice of x)ea/' ^ shall be, § 159. 822 CITY— CLArM AND DELIVERY. CITY: See Municipal Corporation. CITY ATTORNEY. Nuisance, to abate when directed by supervisors, § 731. Nuisance, may sue to abate. § 731. Nuisance, city attorney and district attorney have con- current right to abate, § 731. CITY COURTS, abolition of, p. 763, Stats, Transfer of books, papers, etc., to justice, p. 763, Stats. CIVIL ACTION: See AcUon. CLAIM AND DELIVERY, afTidavit for, must state what, § 510. Affidavit for, necessary, § 510. Affidavit for, when and where filed, § 520. Affidavit misstating value does not bind sheriff, § 473. Agent, service of order on, § 512. Agent, taking property from, § 512. Alternative judgment, § 667. Answer, claim to be made before, § 509. Concealed property, how taken, § 517. Costs of course allowed, when, § 1022. Costs when recovery less than three hundred dollars, § 1025. Damages for detention, § 667. Delivery to defendant, § 515. Delivery to plaintiff, §§ 514, 515. Delivery, when may be claimed, § 509. Judgment in the alternative, § 667. Justices' courts, in, § 870. Justice's court, In, where to be brought, § 832. Limitation of action of, § 338. Notice, when and where filed, § 520. Property, how kept by sheriff, § 518. Redelivery, when defendant entitled to, § 514. Redelivery, undertaking of defendant, § 514. Requisition to sheriff to take property, § 511. Service of order on defendant. § 512. Sheriff's fees. § 518. Sheriff's liability to third person, § 512. Sheriff's liability for defendant's sureties, § 515. Sheriff's return, § 520. Sureties, qualification of, § 516. Third person, claim of property by, § 519. Third person, claim of property by, affidavit, § 519. Third person, claim of property by, undertaking of plaintiff, § 519. CLAIM AND DELIVERY— CLERK. 123 Time when delivery may be demanded, § 509. Title, effect of judgment on, § 1908. Undertaking of defendant, § 514. Undertaking of defendant, justification of sureties § 515. Undertaking of defendant, justification of sureties, fail- ure of, § 515. Undertaking of plaintilT, § 512. Undertaking of plaintiff, and proceedings in serving or- der, § 512. Undertaking of plaintiff, exception to sureties, § 513. Undertaking of plaintiff, exception to sureties, failure to make, § 513. Undertaking of plaintiff where third person claims property, § 519. Undertaking, when and where filed, § 520. Verdict in, requisites of, § 627. Verdict in, assessment of damages, § 637. CLAIM OF PROPERTY in attachment, § 549. In execution, § 689. In replevin, § 519. CLAIMS: See Estates of Decedents; Mechanics' Liens. Adverse, §§ 738-751. See Adverse Claim. Preferred, claims for wages are, §§ 825, 1204. CLERGYMEN, privileged communications, § 1881. CLERK, affidavits, may take, §§ 2012, 2013. Appraiser, no clerk or deputy to be, § 1444. Certified list of jurors to be filed with, § 208. County clerk: See County Clerk. Duty of, in contested elections, § 1118. Duty of, on confession of judgment, § 1134. Judgment, time to enter, § 664. Judgment, to enter, § 664. Judgment-book, to keep, § 668. Judgment-docket, to keep, §§ 671-673. Judgment-roll, to make up, § 670. Justices', §§ 86-97. See Justice's Clerk. Mandate, what to transmit on verdict on, § 1093. Must enter causes on calendar, § 593. Must indorse on complaint, what, § 406. Must keep register of actions, § 1052. Partition sales, to invest proceeds of, § ?89. Partition sale, duty of, on investment, § 79L Partition, to attest decree in, § 1684. 824 CLERK-CODE OF CIVIL PHOCEDURE. Register of actions, to keep, § 1052. Roll of attorneys, to keep, § 280. Seal to be kept by, § 152. Supreme court, of, § 262. Testimony, when to take, § 1051. To return writ of review with transcript, 9 X070. In probate matters. Petition for letters filed with, § 1371. To set petition for hearing, § 1373. To file and record certificate of proof, § 1318. To post notices, § 1373. To issue citation, § lo84. To record letters, etc., § 1387. To sign and seal letters, § 1356. To issue letters, § 1412. To enter claims on register, § 1497. To sign citation, § 1707. When to issue subpoena and citations, §§ 1707, 1708. CLOSED DOORS, trial with, § 125. CLOUD ON TITLE, parties in action to remove, § 381. See Quieting Title. CODE OF CIVIL PROCEDURE, action pending, how a^ fects, § 8. Cited, enumerated, etc., how, § 19. Construction of: See Construction. Construction of words and phrases, § 16. Construed liberally, § 4. Continuation of statutes and common law, § 5. Divided Into four parts, § 1. Establishes law on subjects to which it relates, § 4. Is continuation of statutes and common law, g 5. Justices' court, sections applicable to, § 925. Limitation statute, how code affects, § 9. No statute continued in force because consistent with, § 18. Not retroactive, § 8. Office, repeal of, by code, § 7. Penal, provides for prosecution of criminal aQtioi\, 9 31. Private statutes not repealed by, § 18. Repeal by, does not affect existing rights, § 18. Repeal by, does not revive former laws, 9 18. Repealing effect, § 18. Retroactive effect, § 3. Rights existing or accrued not affected by, § 18. Rights not affected by, § 8. CODE OF CIVIL PROCEDURE— COMPLAINT. S2S Statutes not expressly continued In force repealed by, § 18. Statutes in derogation of common law, construction of, § 4. Statutes repealed by, § 18. Tenure of office, how affected by, § 6. When takes effect, § 2. CODICIL, will includes, § 17. See Wills. I. COLOR OF TITLE: See Adverse Possession. COMMISSION, executor or administrator's, § 1618. To take testimony: See Deposition. COMMISSIONER: See Court Commissioner. Findings of, force and effect of, § 644. Findings, judgment on, § 644. Foreclosure, suits for, commissioners in, § 72( Insurance: See Insurance Commissioner. May take affidavits in another state, § 2013. COMMON LAW, code continuation of, § 5. Statutes In derogation of construction of, § 4. COMMUNITY PROPERTY, inventory of decedenr'a cdtate to show what is, § 1445. Proceedings to determine interest on death lit spouse, § 1723. COMPENSATION: See Salary. Agent of absentee in distribution proct'^een what hours to be held, § 694. Sale, certificate of, §§ 698, 699. Sale, certificate of, filing duplicate with recorder, § 700. Sale, certificate of sale, sheriff to give, § 700. Sale, certificate of, what to contain, § 700. Sale, damages to realty, purchaser may recover for, § 746. Sale, delivery of property susceptible of manual deliv- ery, § 698. Sale, delivery of property not susceptible of manual delivery, § 699. Sale, enjoining injury to property after, and before conveyance, § 745. Sale, evicted purchaser, remedy of, § 708. Sale, excess in proceeds, how disposed of, § 691. Sale, extent of officer's liability, § 697. Sale, how conducted, § 694. EXECUTION. 893 Sale, manner of, §§ 693, 694. Sale, notice, how given, § 692. Sale, notice, penalty for defacing or taking down, § 693. Sale, notice in case judgment specifies kind of money payable in, § 692. Sale, notice in case of perishables, § 692. Sale, notice in case of personalty, § 692. Sale, notice in case of realty, § 692. Sale, notice, without, penalty, § 693. Sale, officer or deputy not to purchase, § 694. Sale, order of, judgment debtor may direct, § 694. Sale, personalty, manner of, § 694. Sale, property not susceptible of delivery, certificate of sale, § 699. Sale, purchaser, failure to get possession because of irregularity, rights of, § 708. Sale, purchaser may recover damages for injuries to realty, § 746. Sales, purchaser not getting possession, revival of judgment in favor of, § 708. Sale, purchaser, rights of on a reversal or discharge of judgment, § 708. Sale, refusal of purchaser to comply, his liability, § 3%. Sale, refusal of purchaser to comply, his subsequent bid refused, § 696. Sale, refusal of purchaser to comply, proceedings on, § 695. Sale, to be at public auction, § 694. Sale, to cease when sufficient property sold, § 694. Sale, to be in separate lots or parcels, § 094. Sale, what bids may be refused, § 696. Sale, what title passes, § 700. Sale, when absolute, § 700. Sale, when conveyance to be made, § 703. Satisfaction of judgment by return of, § 675. Sheriff's deed, when purchaser entitled to, § 703. Ships, against, application of proceeds, § 825. Subrogation by debtor paying, § 709. Subrogation of surety paying, § 709. Supplementary proceedings, §§ 714-721. See Supple- mentary Proceedings. Third person, claim of property by, § 689. Time of, after five years, § 681. 896 EXECUTION— EXECUTORS AND ADMINISTRATORS. Time within which may issue, § 681. Time within which may issue, when stayed or en- joined, § 681. To issue in name of people, § 682. To issue to whom, when concerns real property, § 687. To whom may issue, § 687. To whom to issue, when property required to be de- livered, § 687. Until levy, property not affected by, § 688. Vessels, against, application of proceeds, § 825. Wages, claim for preferred, § 1206. Waste may be restrained until time to redeem expires, § 706. Waste, what is not, § 706. What liable to be seized on, § 688. What property exempt from, § 690. What to contain, § 682. What to require, § 682. Who may issue, § 682. Whom to be directed to, § 682. Writ of, how executed, § 691. Writ to require what of sheriff, § 683. EXECUTION-BOOK, § 683. EXECUTION OF INSTRUMENT, defined, § 19^3. EXECUTORS AND ADMINISTRATORS. I. Who competent and entitled to act; nomination; appointment. II. Letters testamentary or of administration. III. Bond and oath. IV. Termination of authority; removal; suspension; renunciation. V. Powers, duties and liabilities; possession of estate. VI. Debts of; claims of against estate; naming debtor as executor. VII. Actions by and against; actions commenced during life of decedent. VIII. Contracts of decedent for purchase or sale of prop- erty. 1. For purchase of land. 2. Enforcement of contract to convey personalty. 3. Enforcement of contract to convey realty. EXliCUTOES AND ADMINISTRATORS, I. 897 IX. Joint executors. X. Special administrators. XI. Executors de son tort. XII. Accounting and settlement. XIII. Time to close administration and extension of. XIV. Appeals. XV. Costs; fees; expenses; compensation; commis- sions. See Estates of Decedents; Public Administrator; Pro- bate Court. I. Who competent and entitled to act; nomination; ap- pointment. Absence of executor named from state, proceedings in case of, § 1354. Administrator, creditor a^, § 1365. Administrator, guardian of infant or lunatic as, § 1368. Administrator, infant incompetent as, § 1369. • Administrator, lunatic incompetent as, § 1369. Administrator, married woman as, § 1370. Administrator, nonresident incompetent as, § 1369. Administrator, order of persons entitled to be ap- pointed, § 1365. Administrator, partner as, § 1365. Administrator, persons equally entitled to act as, wbo preferred, § 1366. Administrator, male preferred to female, § 1366. Administrator, whole blood preferred to half, § 1366. Administrator, who incompetent to act as, § 1369. Administrator, who may act as, § 1365. Administrator, who appointed, when all others incom- petent, § 1426. Administrator with will annexed, appointment of on death of incompetency of all representatives, § 1426. Administrator with will annexed when other property discovered, § 1698. Appointm.ent, certificate of, seal, § 153. Appointment, nuncupative will as in other cases, § 1346. Appointment of guardian of incompetent as administra- tor, § 1368. Appointment, transcript of court minutes to be evi- dence, § 1429. Code sections governing appointment, powers and duties, § 304. Code Civil Proc— 57. EXECUTORS AND ADMINISTRATORS, I, It. Corporation as executor, § 1348. Corporation, act authorizing to act as executor, p. 768. Creditor, application by, for letters, appointment of another on request of another creditor, § 1367. Drunkard, incompetent, § 1369. Executor, who incompetent to serve as, § 1350. Executrix, married woman may be appointed as, § 1352. Incompetency of all representatives, appointment of administrator, § 1426. Infant as executor, §§ 1350, 1354. Infant or incompetent, who appointed administrator when appointed, § 1368. Infant, minority of executor, proceedings on, § 1354. Infant or incompetent, when nominated, guardian ap- pointed administrator, § 1368. Insane person incompetent as administrator, § 1369. Married woman may act as administratrix, § 1370. Nomination, administration granted at request of per- son entitled to letters, § 1379. Nominee of surviving husband or wife, § 1305. Nonresident as administrator, § 1369. Nuncupative will, executors, manner of appointment, § 1346. Order of persons entitled to administer, § 1305. Preference among those equally entitled, §§ 1360, 1367. Who to act as, when all acting are incompetent, § 1426. II. Letters testamentary or of administration. Discovery of property after settlement, issuance of let- ters, § 1698. Form of letters of administration, § 1302. Form of letters testamentary, § 1423. Letters may be granted to one or more, where several equally entitled, § 1367. Letters, objections to issuing to be heard and deter- mined, § 1351. Letters, objection to issuing, petition for letters may be filed with, § 1351. Letters to issue to party entitled after hearing allega- tions and proof, § 1375. Letters, subsequent issue of, after final settlement, § 1698. Letters, to issue to persons named, § 1349. Letters durante minore aetate, § 1354. Letters, to be issued to persons named executors, § 1349. EXECUTORS AND ADMINISTRATORS, II. 8U» Letters, oath to be attached to, § 1387. Letters to be signed and sealed, §§ 1356, 13G1. Letters, recording, § 1387. Letters of administrator to be filed with clerk, § 1356. Letters of administration, when executor absent from state, § 1354. Letters of administration, petition for may be filed with objections to letters to executor, § 1351. Letters of administration, examination before granting, § 1378. Letters of administration, failure to apply for, grant to others, § 1377. Letters of administration, form of, § 13G2. Letters of administration, time for granting, § 1372. Letters of administration, what proofs must be made before granting, § 1378. Letters of administration with will annexed, form of, §§ 1356, 1361. Letters testamentary, form of, § 1360. Letters, who may object to granting, § 1351. Nonresident entitled to letters, identity of, how estab- lished, § 1379. Petition, executor forfeits right to letters, on failure to, § 1301. Petition for letters of administration, what to state, § 1371. Petition for letters of administration, contesting, § 1374. Petition for letters of administration, hearing of, § 1375. Petition for letters of administration, how made, § 1371. Petition for" letters of administration, jurisdictional averments, § 1371. Petition for letters of administration, notice of, evi- dence of, § 1376. Petition for letters of administration, notice of post- ing, § 1373. Petition for letters of administration, notice of requi- sites, § 1373. Petition for letters of administration, requisites of § 1371. Petition for lettters of administration, setting for hear- ing, § 1373. Petition for letters of administration, entry of proof and notice conclusive, § 1376. Subsequent issue of letters after final discharge, § 1697. Settlement of estate, discovery of property after, issu- ance of letters on, § 1698. Transcript of court minutes to be evidence equivalent to letters, § 1429. ) EXECUTORS AND ADMINISTRATORS, ill. III. Bond and oath. Appear and qualify, must, § 1349. Bond, amount of, § 1388. Bond to be ■given by administrator, § 1426. Bond, representative must give, § 1388. Bond, suspending powers pending motion to require, § 1401. Bond, approved, must be, by judge of superior court, § 1393. Bond, approve, judge may, at chambers, § 166. Bond of administrator appointed on death or incom- petency of all representatives, § 1426. Bond of corporation as, § 1348. Bond, certificate of justification to be attached to, § 1393. Bonds, to be recorded by clerk, § 1387. Bond, citation to sureties on insuflBcient, § 1394. Bond, additional, citation when security insufficient, §§ 1398, 1402. Bonds, additional, citation, time and manner of ser- vice, § 1398. Bond, additional, application for, when may be made. § 1406. Bond, additional, citation, service where executor ab- sconds or cannot be found, § 1398. Bond of, additional, petition for, hearing, § 1399. Bond of, additional, petition for, new bond ordered when, § 1399. Bond of, additional, petition for, suspending power of representative, § 1401. Bond of, additional, petition for, when bond insuffi- cient, § 1397. Bond of, additional, petition for when sureties failing, etc., § 1397. Bond, additional, applications for, orders on to be en- tered in minutes, § 1406. Bonds, additional, hearing of evidence, § 1399. Bond, additional, suspending powers until matter de- termined, § 1401. Bond, additional, when ordered, § 1399. EXECUTORS AND ADMINISTRATORS, III. 901 Bond of, additional for sale of real estate, 5 1389. Bond of, additional security when bond insufficient, § 1394. Bond of, additional, when not required, § 1389. Bond of, another representative may sue on, § 1586. Bond of, citation to sureties to be examined, § 1394. Bond of, conditions of, § 1390. Bond of, examination of sureties, § 1394. Bond of, failure to give, devests of right to adminis- ter, § 1395. Bond of, form and requisites of, § 1388. Bond of, further security, when ordered without appli- cation for, § 1402. Bond of, insufficient, citation to sureties, § 1394. Bond of, justification of sureties, § 1393. Bond of, liability on, kind of money, § 1407. Bond, liability on when executor resigns, § 1427. Bond of, new, revoking letters for failure to give, § 1405. Bond of, new, revoking letters for neglect to give, § 1400. Bond of, new sureties, release of old, § 1404. Bond, sureties, release of, citation, service of when executor absent, § 1403. Bond, requirement of, although will dispenses with, § 1396. Bond of, petition to require, when will provides that none be given, § 1401. Bond of, provision in will that none shall be given, ef- fect of, §§ 1396, 1401. Bond of, reduction of on deposit of fund with corpora- tion, p. 770, § 4, Stats. Bond of, release of sureties, petition for, §§ 1403, 1404. Bond of, release of sureties, citation to give other se- curity, § 1403. Bond, right to administer ceases if sufficient not given, § 1395. Bonds, sureties, applications of to be released, § 1406. Bond of, separate, when more than one representative, § 1391. J EXECUTORS AND ADMINISTRATORS, 111, IV. Bond of, several recoveries on, § 1392. Bond of, stand as security on appeal, § 938. Bond of, dispensed with when will so provides, § 1396. Corporation, as, oath of, § 1348. Corporation as, bond of, p. 770, § 5, Stats. Corporation as, qualification of, p. 7G8, § 1, Stats. Oath of, before letters issue, § 1387. Oath of special administrator, § 1414. IV. Termination of authority; removal; suspension; re- nunciation. Death of, letters of administration with will annexed to be issued, § 1353. Death of, executor of not entitled to letters, § 1353. Death, administration with will annexed to be issued, on, of executor, § 1353. Marriage of administratrix does not terminate author- ity, § 1370. Marriage of executrix does not terminate authority, § 1352. Removal for disobedience of orders, § 1721. Rem.oval, when committed for contempt, §§ 1588, 1721. Removal, failure to make return of sales, § 1575. Removal for contempt, § 1721. Removal, failure to make inventory of after-discovered property, § 1451. Removal, citation to, to show cause, § 1437. Removal of, the hearing, attachment to compel attend- ance, § 1440. Removal of, the hearing, compelling attendance, § 1440. Removal of, the hearing, examination under oath, § 1440. Renunciation, failure to petition for letters amounts to, § 1301. Renunciation by executor, appointment of another, §-1301. Resignation of, § 1427. Resignation of, accounting, and delivery of property, § 1427. EXECUTORS AND ADMINISTRATOKS, IV. S03 Resignation of, revocation of letters and appointment of administrator, § 1427. Resignation of, liability on bond, § 1427. Revocation of probate of will, effect on powers and duties of, § 1331. Revocation, accounting, for dereliction in, §§ 1627, 1630. Revocation, account after, §§ 1423, 1629. Revocation, all acts before, are valid, •§ 1428. Revocation citation to administrator, §§ 1384, 1385. Revocation, d-jty of remaining executors, ,5 1425. Revocation, failure to obey, citation, § 1437. Revocation, for contempt, § 1721. Revocation, for failure to return inventory, § 1450. Revocation, for neglect to give new bond, § 1405. Revocation, for failure to give new bond, § 1400. Revocation, for failure to give notice to creditors, § 1511. Revocation, for failure to make return of sale, § 1575. Revocation, failure to return account of sale, § 1675. Revocation, hearing of petition, § 1385. Revocation, how obtained, § 1383. Revocation, notice of, § 1384. Revocation, of administration on petition of person en- titled to letters, § 1385. Revocation of administration upon probate of will, § 1423. Revocation of letters for failure to, account, § 1630. Revocation of letters of administrator, citation to, §§ 1384, 1385. Revocation, of representative resigning, § 1427. Revocation, on proceedings to suspend representative, §§ 1437, 1440. Revocation, petition for, §§ 1383, 1384. Revocation, power of subsequent representative, § 1424. Revocation, prior rights of relatives entitle them to revoke prior letters, §§ 1383, 1386. Revocation, upon probate of later will, § 1423. Revocation, when account shows neglect, etc., §§ 1626, 1627. )4 EXECUTORS AND ADMINISTRATORS, IV, V. Revocation, of all representatives, appointment of ad- ministrator, § 1426. Revocation, when granted to one other than compe- tent, §§ 13S3, 1386. Revocation, who may obtain, § 1383. Suspension of, grounds for, § 1436. Suspension, for waste, § 1401. Suspension of, any interested party may appear at hearing, § 1438. Suspension of, citation, § 1437. Suspension, notice, publication of when executor ab- sent or conceals himself, § 1439. Suspension of, executor may answer or demur to appli- cation, § 1438. Suspension of, manner of proceeding, § 1436. Suspension of, notice, § 1437. Suspension of, notice to absconding representative, publication of, § 1439. Suspension of, power of, § 1401. Suspension of, the hearing, § 1438. Suspension of, the hearing, pleadings, § 1438. Suspension of, the hearing, punishment for refusal to answer questions, § 1440. Suspension of, removal of, on proceedings for, § 1437. Suspension, issues raised to be determined by court, § 1438. Suspension, judge may suspend at chambers, § 166. Suspension of, pending petition for additional bond, § 1401. Suspension of, pending petition that executor give bond, § 1401. V. Powers, duties and liabilities; possession of estate. Acts of, valid until power revoked, § 1428. Administrator with will annexed, power of, §§ 1356, 1424. Administrator with will annexed, acts of, effect of, § 1356. Appraisement, increase or decrease of estate, effect of, § 1614. EXECUTORS AND ADMINISTRATORS, V. aOf. Appraisement, rights and liabilities on sale for more or less than, § 1614. Authority of administrators with will annexed, § 1356. Cannot purchase claims against estate, § 1617. Cannot purchase property of estate, § 1576. Chargeable with estate at value of appraisement, § 1613. Chargeable with interest, profit and income of estate, § 1613. Claim against estate, not to purchase, § 1617. Code sections governing powers and duties, § 304. Compounding debt by, § 1588. Compromise of debt by, § 1788. Corporation acting as executor, powers and liabilities, p. 771, §§ 6 et seq.. Stats. Corporation, deposit of funds with corporation, p. 769, § 2, Stats. Debts, uncollected, liability for, § 1615. Depreciation of estate without fault, executor not to lose by, § 1614. Executor, power of, when appointed after revocation of prior letters, § 1424. Increase or decrease of estate, effect of, § 1614. Investment of funds pending settlement, § 1640. Investment of funds, in what securities, § 1640. Investment of funds, procedure in obtaining order, § 1640. Lease of estate by, § 1579. Liability for failure to give notice to creditors, § 1650. Liability of, statute of frauds, § 1612. Liability on debts after decree of payment, § 1649. Liability for selling for less than appraisement, § 1614. Liability for uncollected debts, § 1615. Liability, on promise to answer out of own estate, § 1612. Liable, personally, to creditor for allowed claim, § 1649. Mortgage of estate by, § 1578- 3 EXECUTORS AND ADMINISTRATORS, V, VI. VII. Not to profit by increase of estate, § 1614. Possession of estate, to talie, § 1581. Possession of, is possession of heirs or devisees, for what purpose, § 1581. Possession of heirs or devisees subject to possession of, § 1581. Possession, heirs or devisees may sue for, § 1452. Possession, heirs may sue for jointly with executor, § 1452. Possession, right of heirs. and devisees to, § 1581. Possession by, of personal and real estate, entitled to, § 1452. Possession of estate, recovery of, by representative, § 1452. Possession of real estate, when to be delivered to heirs or devisees, § 1453. Proiit by increase of estate, not to, § 1614. Property to be kept in good repair, § 1452. Rents and profits, to receive, § 1452. Repair of buildings, duty of executor as to, § 1452. Territorial limits of authority, § 1913. To collect debts due estate, § 1581. VI. Debts of; claims of against estate; naming debtor as executor. Attorneys' fees in suit by executor against, § 1510. Claims of, against estate, presentation and allowance of, § 1510. Claims of, against estate, rejection of, suit thereon, costs, § 1510. Costs and attorney's fee in suit by executor on claim against, § 1510. Debtor, effect of naming as executor, § 1447. Discharge or bequest of debt due by executor, § 1448. VII. Actions by and against; actions commenced during life of decedent. "^ Action by, within what time may be brought, §§ 353, 355. EXECUTORS AND ADMINISTRATORS, VII. 90J Actions against, within what time may be brought, § 353. Actions on contracts may be maintained by or against, § 1582. Action to determine adverse claim lies by or against, § 1582. Contest of will: See Wills, VIII, IX. Conversion, action for, § 1583. Conversion of decedent, action for, against represen- tative, § 1584. Costs in action by or against executors, chargeable against, § 1031. Death caused by negligence, may sue for, § 377. Death, wrongful, may sue for, § 377. Ejectment lies by and against, § 1582. Execution after death of party, executor may have is- sued, § 686. Execution against, to enforce personal liability on debts of estate, § 1649. Fraudulent conveyance by decedent, action by, to re- cover property, § 1589. Fraudulent conveyance, executor not bound to sue for, § 1590. Fraudulent conveyance, creditor asking executor to set aside, to advance costs, § 1590. Fraudulent conveyance, recovery of property, §§ 1589, 1590. Fraudulent conveyance, recovery of, sale of, and dis- position of proceeds, § 1591. Fraudulent conveyance of decedent, recovery by rep- resentative, §§ 1589-1591. Judgment after death, how paid, § 669. Judgment against, effect of, § 1504. Judgment against executor, transcript of to be filed among papers, § 1504. Judgment against executor, no execution to issue on, § 1504. Jud'gment against executor, creates no lien on, § 1504. Limitation of action by or against, §§ 353, 355. ! EXECUTORS AND ADMINISTRATORS, VII, VIII. May sue without' joining persons beneficially inter- ested, § 369. Negligence causing death, may sue for, § 377. Parties, representatives not qualifying need not be made, § 1587. Partition, possession of executors is possession of heirs for purpose of, § 1581. Partner, surviving, failure to account, action to com- pel, § 1585. Quieting title, action lies for purpose of, § 1582. Quieting title, possession of representatives for pur- pose of, § 1581. Quieting title, possession of executors is possession of heirs for purpose of, § 1581. Quiet title, action to, lies by or against, § 1582. Quiet title, heirs or devisees may sue to, § 1452. Quiet title, heirs may join with representatives to, § 1452. Restraining executor during proceedings to establish lost will, § 1341. Substitution of, as party, § 385. Trespass, action for, § 1583. Trespass of decedent, action for, against representa- tive, § 1584. Trover, action of by or against, §§ 1583, 1584. Waste, action for, § 1583. Waste of decedent, action for, against representative, § 1584. VIII. Contracts of decedent for purchase or sale of land: 1. For purchase of land. Contract for purchase of land by decedent, sale of, §§ 1565-1568. Contract for purchase of land, executor to assign on confirmation of sale, § 1568. Contract of decedent for purchase of land, bond of pur- chaser, §§ 1566, 1567. Contract for purchase of land, sale of, conditions of purchase, § 1566. 2. Enforcement of contract for sale of personalty. Conveyance, effect of, § 1603. Court may authorize and direct transfer, § 1597. Decree, effect of, § 1601. EXECUTORS AND ADMINISTRATORS, Vin, IX. ItUU Decree for transfer, effect of recording certified copy, § 1604. Decree may direct surrender of possession, § 1607. Decree ordering transfer, when made, §§ 1600, 1601. Decree prima facie evidence, § 1601. Decree, recording does not prevent court enforcing, § 1605. Dismissal, right to sue for specific performance, § 1602, Dismissal where case doubtful, § 1602. Hearing and contest and proceedings on, § 1599. Hearing, notice of and publication of, § 1598. Hearing, time and place of, § 1598. Petition for transfer, § 1598. Proceedings where person entitled to transfer is dead, § 1606. 3. Enforcement of contract to convey realty. Conveyance, effect of, § 1603. Court may authorize and direct conveyance, § 1597. Decree ordering conveyance when made, §§ 1600, 1601. Decree may direct surrender of possession, § 1607. Decree, effect of, § 1601. Decree, effect of recording certified copy, § 1604. Decree, prima facie evidence, § 1601. Decree, recording certified copy in county where land is, § 1601. Decree, recording, does not prevent court from enforc- ing, § 1605. Dismissal, where case doubtful, § 1602. Dismissal, right to sue for specific performance, § 1602. Hearing and contest, and proceedings on, § 1599. Hearing, notice of and publication of, § 1598. Hearing, time and place of, § 1598. Petition for conveyance, § 1598. Proceedings where person entitled to conveyance is dead, § 1606. IX. Joint executors. Acts of, portion of valid, § 1355. Executor remaining when colleagues disqualified, du- ties of, § 1425. Less than whole number of, may act, § 1355. Majority, acts of, are valid, § 1355. Two executors, acts of one, when effectual, § 1355. Where all not appointed those appointed have full au- thority, § 1355. wo EXECUTORS AND ADMINISTRATORS, X, XI, Xll. X. Special administrators. Account of, § 1417. Appeal, none from appointment, § 1413. Appointment of, time and manner of, § 1412. Appointment of, on resignation of executor or admin- istrator, § 1427. Bond of, § 1414. Claims, special administrator not liable to actions on, § 1415. Delivery of property to successor, § 1416. Duties of, § 1415. Issue of letters to, § 1412. Judge may issue letters at chambers, § 166. Liabilities of, § 1415. Notice not necessary, § 1412. Not liable to creditor on claim, § 1415, No notice of appointment, § 1412. Oath of,' § 1414. Powers of, §§ 1411, 1415. Powers of, cease when letters testamentary or of ad- ministration issue, § 1416. Preference to persons entitled to letters, § 1413. Suit begun by, § 1416. Suits by and against, § 1415. When may be appointed, § 1411. XI. Executors de son tort. De son tort, § 1428. Liability as, § 1428. XII. Accounting and settlement. Account of, after authority revoked, § 1629. Account of, after letters revoked, § 1423. Account, allowance of, conclusiveness of, § 1637. Account, at expiration of term, § 1628. Account, at expiration of term, attachment to compel, § 1628. Account, attachment for disobeying citation to account, § 1627. Account, attachment to compel, citation to issue before, § 1628. Account, citation to executor to render, when issued, §§ 1623, 1625. Account, citing persons intrusted with estate to, on oath, § 1461. EXECUTORS AND ADMINISTRATORS, XII. Ull Account, debts presented ajid allowed to be exhibited, § 1628. Account, failure to render, citation, § 1G23. Account, final, when to be made, § 1652. Account, increase or decrease of estate, effect of, § 1614. Account, may be examined under oath, § 1631. Account may be received at chambers, § 166. Account, objections to, and contest of, § 1635. Account, objections to, examination of executor, § 1626. Account, on final distribution, § 1665. Account, payment of debts without affidavit, and al- lowance, § 1632. Account, petition that executor be required to render, who may file, § 1624. Account, revoking letters for dereliction in, §§ 1627, 1630. Account, time to render, §§ 1622, 1628. Account, to show what, §§ 1622, 1628. Account, vouchers for items less than twenty dollars, § 1632. Account, vouchers for items, when accepted, § 1632. Account, vouchers to remain in court, § 1631. Account, vouchers to support claim, may require, § 1494. Account, voucher, withdrawal of, § 1631. Account, voucher, lost, proof of payment, § 1631. Account, when may be required. § 1622. Account, who may contest, § 1626. Account, who may require, § 1622. Account, special administrator, § 1417. Accounting, sale for more than appraisement, § 1614. Chargeable, with all of estate, § 1613. Claim against estate, paying for less than its value, allowance to, § 1617. Death of, accounts how settled, § 1639. Death of, successor may compel representatives to ac- count, § 1639. Discharge of, from liability, decree of, when to be made, § 1697. Settlement, account, when regarded as fianl, § 1647. Settlement, appointing the day, § 1633. Settlement, apportionment where funds insufficient to meet debts, § 1647. ~ Settlement, conclusiveness of, § 1637. 912 EXECUTORS AND ADMINISTRATORS, XII, XIII, XIV, XV. Settlement, contest of claims, § 1636. Settlement, extension of time for final account, 8 1651. Settlement, hearing, postponement of, § 1636. Settlement, final, notice, § 1653. Settlement, final, and discharge, § 1697. Settlement, hearing, § 1636. Settlement, heirs may contest all matters, § 1G36. Settlement, neglect to r^der final account, proceed- ings to compel, § 1653. Settlement, notice of. §§ 1633, 1634. Settlement, notice of, further, § 1633. Settlement, notice, decree must show proof was made, § 1638. Settlement, notice, decree to show proof made, § 1638, Settlement, on final distribution, § 1665. Settlement, order for payment of debts, and discharge of representative, § 1647. Settlement, final account, partition and distribution at same time, § 1634. Settlement, proof of notice, necessary before, § 1638. Settlement, reference of, § 1636. Settlement, when conclusive, and when not, § 1637. Settlement, when final to be made, § 1652. XIII. Time to close administration, and extension of. Continuance of time for administration, where will puts limitation thereon, § 1670. Discovery of property after settlement, issuance of let- ters, § 1698. XIV. Appeals. Appeal from appointment of special administrator does not lie, § 1413. Appeal lies from what orders respecting, § 693. Dispensing with security, § 946. Oflicial bond, sufficient, § 965. Orders relating to issuing, refusing to issue or revok- ing letters appealable, § 963. Reversal of order apointing, validity of acts, § 966. XV. Costs; fees; expenses; compensation; commissions. Allowances, attorney's fee, §§ 1616, 1619. Allowances, necessary expenses, § 1616. Allowances, extra, § 1618. Attorneys' fees, allowance and rate, §§ 1616, 1619. EXECUTORS, ETC., XV— FACTS. ai3 Attorneys' fees, appeal from order allowing, § 1616. Commissions and allowances of, § 1618. Commissions, where estate distributed in kind, § 1618. Compensation, contract with heirs, etc., for higher, § 1618. Compensation, extra allowance, when made, § 1618. Compensation, extra allowance, limitations upon, § 1618. Compensation, provision therefor in will, §§ 1616, 1617. Corporation acting as executor, compensation of, p. 768, § 1,. Stats. Costs, allowance of, to, § 1509. Costs, individually liable for, § 1509. Expenses in care and management, allowance of, § 1616. Expenses of administration, executor may retain, § 1646. Extra allowance, power to make, § 1618. Public administrators, compensation and allowance, § 1618. EXEMPLARY DAMAGES: See Damages. EXEMPTION from jury duty, § 200. From jury duty, aflidavit, § 202. Judgment against officers, how enforced, § 710. What property exempt from execution, § 690, EXHIBITS. Material objects, § 1954. EXONERATION of bail, §§ 488, 489, 491. EXPERT TESTIMONY: See Witnesses. EXPRESS AGENT exempt from jury duty, § 200. EXTENSION OF TIME, in general, § 1054. FACTS, ancient, evidence of common reputation as to, § 1870. Collateral, inquiry into, § 18G8. Conclusions of law not supported by finding of fact setting aside judgment for, § 6C3. Degree of certainty required to establish, § 1826. Errors in, setting aside judgment for, § 663. Findings of: See Findings. Insufficiency of, ground for demurrer, § 430. Issue of, how it arises, § 590. Issues of, by whom tried, § 592. . Jury as judges of, § 2101. Of which court will take judicial notice, § 1875. Questions of, to be tried by jury, § 2101. Service of summons by person other than sheriff, fee for, p. 762, Stats. Code Civil Proc— 5J. 914 FACTS— FINDINGS. Special issues not made by pleadings, how tried, § 309. To be stated in complaint, § 42G. What facts may be proved on trial, § 1870. When general or special may be given, § 625. FALSE IMPRISONMENT, limitation of action for, § 340. FARMER, property of, exempt from execution, § 690. FAMILY BIBLES, entries in, as evidence, § 1870. FATHER: See Parent and Child. FEDERAL, judgment, limitation of action on, § 336. FEES chargeable to estates in hands of public administra- tor, when and by whom paid, § 1741. Court commissioner's, § 259. Clerk's, on change of venue, § 1760. Depositions out of state on oral interrogatories, fees and mileage of parties, § 2025%. Justice's court, in, § 91. Justices' courts, in, collection, report and payment into treasury, § 103. Notice of completion of building, fee for recording, § 1187. Of attorney, how to be paid, § 1021. OflQcer's, when proceedings stayed on appeal to supe- rior court, § 979. Official reporter's, § 274. Payment of in justice's court, § 91. Recording claim of lien, for, § 1189. Referees', §§ 768, 1028, 1508. Venue, on change, § 1760. Witness', § 1987. FEMININE, masculine, includes, § 17. FENCES, eminent domain, §§ 1248, 1251, 1257. FERRY, keeper of, exempt from jury duty, § 200. FICTITIOUS NAME, suing party by, § 474. FIDUCIARY RELATION, judgment for money received in, payable in same kind of money, § 667. FIGURES may be expressed by figures or numerals, § 186. FINDINGS: See Court Commissioners, Reference. Commissioners, effect and force of, § 644. Commissioners, judgment on, § 644. Conclusions of law inconsistent with, vacation of judg- ment, § 663. Conclusions of law not supported by findings of fact, setting aside judgment for, § 663. FINDINGS— FORCIBLE ENTR'S AND DETAINER. 9l5 Errors in, setting aside judgment for, § 663. Judgment-roll, as part of, § G70. Must be in writing and filed within thirty days, § 632. Notice of motion to set aside judgment for errors in, how made, and hearing of, § 6G3^. Of fact may be waived, how, § 634. Of fact and conclusions of law must be stated sepa- rately, § 633. Referee's, effect and force of, § 644. Referee's, how excepted to and reviewed, § 645. Refei-ee's judgment on, § 044. Referee's, must state conclusions of law and fact sepa- rately, § 643. Referees to report within twenty days, § 643. Signing of, constitutes decision, § 1033. Waived by consent in writing, § 034. Waived by failure to appear, § 634. Waived by oral consent in court, § 634. FINE: See Penalty. Arrest for, in justice's court, § 801. Arrest in action for, § 479. Claim and delivery, affidavit in relation to, § 510. Contempt, for, § 1218. Contempt, for, before justice of peace, § 909. Costs of cause, in action involving, § 1022. Juror, for failure to attend, § 238. Justice's court, recovery in, § 112. Mandamus, for disobeying, § 1097. Police court, violation of ordinance, § 932. Public administrator, subject to, for failure to account, § 1744. Transmitting papers on appeal to superior court, for not, § 977. Usurpation of office, for, § 809. FIRE COMPANY, apparatus pertaining to, exempt, § 690. FIRE DEPARTMENT. Actions for damages or on contract to be brought against city, § 390. Apparatus of, exemption of, § 090. Members of department cannot be sued for damages or on contract, § 390. Members of, exempt from jury duty, § 200. FISHERMAN, what property of, exempt, § 690. FORCIBLE ENTRY AND DETAINER, answer in, § 1170. Answer to be verified, § 1175. Appeal from judgment, effect of, § 1176. Appeal from judgment, how taken, § 1178. FORCIBLE ENTRY AND DETAINER. Appeal in, Jurisdiction of supreme court, § 52. , Appeals, provisions relating to, apply in, § 1178. Appearance of defendant, § 1170. Appearance, failure to make, default judgment, § 1169. Arrest, § 1168. Assigning or subletting, effect of, § 1161. Complaint, amendment of, § 1173. Complaint, amendment to, terms not imposed, § 1173. Complaint, requisites of, § 1166. Complaint to be verified, §§ 1166, 1175. Complaint to set forth what, § 1166. Conditions and covenants, breach and performance of, § 1161. Conditions and covenants, subtenant may perform, § 1161. Continuance, § 1173. Costs, § 1174. Coverture not a defense, § 1164. Damages, amount of, § 1174. Damages, treble in, § 735. Default judgment, § 1169. Defendant may show what in defense, § 1172. Demurrer, § 1170. Evidence, what defendant may show in defense, § 1172. Evidence, § 1172. Evidence, showing required of plaintiff, § 1172. Execution on judgment, § 1174. Forcible detainer, what constitutes, § 1160. Forcible detainer, who is occupant, § 1160. Forcible entry, what constitutes, § 1159. Forfeiture of lease, proceedings for relief against, § 1179. Forfeiture of lease, who may apply for relief against, § 1179. Forfeiture, relieving against, § 1179. Forfeiture, saving lease from by performance, § 1161. Holding over of agricultural land, effect of, § 1161. Judgment, enforcement of, § 1174. Judgment, generally, § 1174. Judgment binds all entering under tenant, § 1164. Judgment, nature and amount of, § 1174. Judgment satisfied by interested party paying dam- ages, § 1174. Jurisdiction, concurrent, of superior and justice's court. § 1163. Jurisdiction in cases of, §§ 76, 113. Jurisdiction of justice's court, §§ 113, 838. FORB3CLOSURE OF MORTGAGE. BIT Jurisdiction of superior court, § 1163. Jury, liow formed, § 1171. Jury trial, § 1171. Justice's court, Jurisdiction of, §§ 713, 838. Married woman, execution, enforcement of, § 1164. New trial, provisions relating to apply, § 1178. Notice, service of, §§ 1161, 1162. Notice, failure to serve on subtenant, no defense, § 1164. Parties, §§ 1164, 1165. Parties, nonjoinder, judgment to be rendered against party serve'd, § 1164. Parties, nonjoinder, nonsuit not to be granted, § 1164. Parties, nonjoinder, proceedings not to abate, § 1164. Practice, rules of, § 1177. Restitution of the premises, § 1174. Subletting terminates tenancy, § 1161. Summons, alias, in, § 1167. Summons, requisites of, § 1167. Summons, return of, § 1167. Summons, return of, new summons, § 1167. Summons, service of, § 1167. Summons, time of return of, § 1166. Summons, to whom directed, § 1167. Summons, when to issue, § 1166. Tenant may bring proceedings against subtenant, § 1161. Tenant holding over, rights of, § 1161. Treble damages in, § 735. Unlawful detainer, notice to tenant, § 1161. Unlawful detainer, notice to tenant, service of, §§ 1161, 1162. Unlawful detainer, who guilty of, § 1161. Unlawful detainer, who was guilty of, § 1161. Unlawful detainer by subtenant, § 1161. Unlawful detainer by subtenant, proceedings by tenant, § 1161. Unlawful detainer, saving lease from forfeiture by per- formance, § 1161. Verdict, § 1174. Verification of pleadings, § 1175. Waste, committing, terminates tenancy, § 1161. FORECLOSURE OF MORTGAGE. Appeal lies from inter- locutory judgment in action to redeem, § 968. Attorneys' fees, § 726. But one action for, § 726. FORECLOSURE OF MORTGAGE. Chattel mortgage, of, undertaking on appeal from, § 943. Commissioner, § 726. Commissioner, compensation of, § 729. Commissioner, conduct of sale, § 726. Commissioner, death, disqualification, absence of, eli- sor, § 726. Commissioner, oath and undertaking of, § 729. Commissioner, powers of, § 726. Commissioner, report of, force of, § 729. Commissioner, report of to contain what, § 729. Commissioner, time to file report, § 729. Costs, § 726. Debt falling due at different times, proceedings in case of, § 728. Decedent's estate, •deficiency judgment, § 1578, Decedent's estate, mortgage of, § 1578. Decedent's estate, redemption, § 1505. Deficiency, personal liability for, § 726. Deficiency judgment, § 726. Deficiency judgment, estate of decedent, § 1578. Elisor to sell, oath and undertaking of, § 726. Exclusive remedy, § 726. Injunction to prevent injury to property, § 745. Installments, § 728. Interlocutory judgment in action to redeem, time for appeal, § 939. Judgment creditor may redeem estate of decedent, § 1505. Lis pendens, filing, § 409. Parties, who need not be made, § 726. Place of trial, § 392. Pleading, written instruments, §§ 447-449. Proceedings, in general, § 726. Proceedings when debt falls due at different times, § 728. Receiver, appointment of, § 564. Redemption, note of record of mortgage to be pro- duced, 705. RcKlemption of estate of decedent, § 1505. Sale, manner of, § 726. Surplus, disposition of, § 727. Surplus money to be deposited in court, § 727. Undertaking to stay, on appeal, § 945. Unrecorded conveyances and encumbrances, § 726. Waste, enjoining, § 745. FOREIGN— FORGKRY. ai9 FOREIGN language, instrument in, experts may testify, § 18C3. Official documents, how proved, § 1918. FOREIGN CORPORATION, security for costs, § 1036. Service on, § 411. Summons, publication, §§ 412, 413. FOREIGNER: See Aliens. FOREIGN JUDGMENTS, conclusiveness of, general rule, § 191.5. Copy of foreign judicial record, when admissible, § 1907. Judgment of court of admiralty, conclusiveness of § 1914. Judicial record of foreign country, how proved, § 1906. Sister state, effect of judicial record of, § 1913. FOREIGN LAWS, books containing, presumed correct, § 1900. How proved, §§ 1901, 1902. Presumption as to books containing reports of cases adjudged, § 1963. Statutes of limitations, § 301. Unwritten, how proved, § 1902. FOREIGN RESIDENT, summons, how served on, § 412. FOREIGN SEAL, effect of, § 1931. FOREIGN WILLS, probate of: See Wills, X. FORFEITURE. Executor failing to petition for letters § 1301. Justice's court, recovery of in, § 112. Lease, of, §§ 1161, 1179. See Landlord and Tenant. Limitation of action on, §§ 33S, 340. Limitation of action to recover from stockholders or directors, § 359. Mechanic's lien, of, § 1202. Of lease, relief against, § 1179. On sale under execution, v.ithout notice, § 693. Place of trial in action for, § 393. Venue of action to recover, § 393. FORGERY, limitations in actions against bank paying forged or raised check, § 340. 920 FORMS OF ACTION-FRESNO COUNTY. FORMS OF ACTION. But one form, § 307. FORMS. Notice of hearing in justice's court, § 850. Satisfaction of mortgage, form of, § 675a. FRANCHISE, action against party usurping, § 803. Condemnation of, under eminent domain, § 1240. Usurpation of, proceedings by attorney general, § 803. Usurpation, §§ 802-810. See Usurpation of Office and Franchise. FRAUD, arrest for, § 479. Arrest for, in justice's court, § 861. Award, vacation of, for, § 1286. Impeachment of judgment for, § 191 G. In sale of decedent's estate, executor's liability, § 1572. Limitation of actions for, § 338. Limitation of action, how affected by, §§ 338, 1573. Parol evidence to show in writing, § 1856. Receiver, appointment of, § 564. Suspending administrator for, § 1436. FRAUDULENT CONVEYANCE, appointment of receiver, § 564. Bond, grantee may give, on suit to set aside, § 676. Bond by grantee on suit to set aside, filing of, § 677^;^. Bond by grantee on suit to set aside, condition and amount of, § C77. Bond by grantee on suit to set aside, objections to sureties, § 678. Bond by grantee on suit to set aside, manner of jus- tification of sureties, § 679i^. Bond by grantee on suit to set aside, when becomes effective, § 680. Bond by grantee on, suit to set aside, judgment when may be rendered on, § 680%. Bond by grantee on suit to set aside, sureties, justifi- cation, approval and disapproval, § 678^^. Bond by grantee on suit to set aside, giving, may con- vey or encumber, § 676. Bond by grantee on suit to set aside, objection that estimated value less than market value, pro- ceedings on, § 679. Of decedent, recovery by executor, §§ 1589-1591. FRESNO COUNTY, acts increasing and lessening nnmber of superior judges in, p. 765. FUNERAL EXPENSES— GRAND JURY. «-! FUNFRAL EXPENSES. 55 1fi43. Ifi^R. FURNITURE exempt from execution, § G90. FUTURE, included in present tense, § 17. GARNISHMENT: See Attachment. Garnishee, when liable to plaintiff, § 544. GENDER of words in -code, § 17. GIFT. Actions involving validity of gifts under will: See Wills, III. Action involving validity of gift under will, conclusive- ness of determination, § 738. Action to quiet title involving gift under will, will ad- missible, § 738. GOVERNOR, direction to attorney general to bring quo warranto, § 803. Request of, to superior judge to hold court for another, § 160. Vacany in superior court, governor to fill, § 70. GRADES, at railroad crossings, § 1240. GRAND JURY, ballot-box, depositing name in, § 209. Constituted, how, § 242. Defined, § 192. Drawing of, order for, § 241. Drawing names by clerk, § 242. Drawn, how, § 241. Drawing, certifying and listing, § 241. Impaneled, when may be, § 241. Impaneling, §§ 241-243. Impaneling, manner of, prescribed by Penal Code, § 243. List of jurors, by whom and when made, § 204. List of, to be placed with county clerk, § 204. Names of jurors, how drawn, § 242. Names of jurors not drawn to be placed on list for succeeding year, § 211. Names of jurors not impaneled to be replaced in box, § 241. Names to be drawn from grand jury box, § 2li. Number of jurors, §§ 192, 241, 242. 922 GRAND JURY— GUARDIANS, I. Kumhpr nf timfts to be drawn each ypar, § 941. Panel, how filed, § 242. Selecting and listing of grand jurors required, § 204. Superior court may direct drawing of, when, § 241. When may be impaneled, § 241. Who competent to act, § 198. Who not competent to act, § 199. GROWING TREES, damages for cutting or injury, §§ 733, 734. GUARANTOR: See Surety. GUARANTY. Representation as to credit of third person to be written, § 1974. Statute of frauds, effect of, § 1973. GUARDIANS. I. Who entitled to act; nomination; appointment. II. Letters. III. Qualification; bond. IV. Inventory and appraisement. V. Powers, duties and liabilities; custody of minor. VI. Sale of property. VII. Lease or mortgage of property; partition of. VIII. Non-residents, guardians of. IX. Joint guardians. X. Accounting. XI. Compensation; expenses; allowance. XII. Appeals. XIII. Termination of authority. XIV. Miscellaneous provisions. I. Who entitled to act; nomination; appointment. • Act authorizing corporation to act as, pp. 768 et seq. Appointment, certificate of, seal, § 153. Appointment, notice, § 1747. Appointment of, order for operates as a decree, § 1808. Appointment of, order of, how entered, § 1808. Appointment, power to make, § 1747. Appointment, preference in, who entitled to, § 1751. GUARDIANS, I, II, III. 923 Appointment to be made on petition after notice, § 1747. Appointment to fill vacancy, § 1801. Corporation may act, § 1348. Court to appoint when infant under fourteen, § 1748. Judge, power of at chambers in matters of guaidian- ship, § 166. Juror, relation of guardian and ward as affecting qual- ification of, § 602. Nomination, infant may make when he is fourteen, §§ 1748, 1750. Nomination, failure of infant over fourteen to make, court may appoint, § 1749. Nomination by infant over fourteen, court may still appoint, when, § 1749. Nomination of another guardian, infant may make on reaching fourteen years, § 1750. Nominee of minor fourteen or over to be appointed, § 1751. Notice of appointment, § 1747. Petition for appointing, who may file, § 1747. Preference in appointment of, who entitled to, § 1751. Referee, relation of guardian and ward as affecting qualification of, § 641. When may be appointed, generally, § 1747. II. Letters. Form of, § 1754. Oath of guardian to be indorsed on, § 1754. Oath of, to be indorsed on letters, § 1754. To be recorded, § 1756. When to be issued, § 1754. III. Qualification; bond. Bond, conditions of, duty to perform, § 1755. Bond, code provisions applying to, § 1809. Bond, discharge of sureties on old bond, § 1803. Bond, liability on, kinds of money, § 1407. Bond, limitation of actions on, §§ 1805, 1806. Bond, may be prosecuted for benefit of any person interested, § 1804. Bond, new, when required, § 1803. Bond of, conditions of, § 1754. Bond of, conditions in, court may insert in order ap- pointing, § 1755. 924 GUARDIANS, III, IV, V. Bond of, for selling property, § 1788. Bond of testamentary, § 1758. Bond, sureties on qualifications of, § 1809. Bond, surety company may act as surety, § 1809. Bond, testamentary guardian need not give unless court directs, § 1758. Bond, to be filed, § 1804. Bond, to be recorded, § 1756. Bonds, where more than one guardian appointed, § 1807. Corporation as, qualification, oath and bond, § 1348. Corporation, deposit of funds with and reduction of bond, pp. 769, 770, §§ 2, 4, Stats. IV. Inventory and appraisement. Appraisement of estate, how made, § 1773. Appraisement to be recorded, § 1773. Appraisement of after-acquired property, § 1773. Inventory, guardian to return, § 1773. Inventory of after-acquired property, § 1773. Inventory to be recorded, § 1773. Inventory to be sworn to, § 1773. Inventory, when and how made, § 1773. V. Powers, duties and liabilities; custody of minor. Accounts of ward, guardian to settle, § 1769. Appearance by guardian, § 1722. Appearance by, in justice's court, for infant or Incom- petent, § 843. Custody of minor, court may direct sheriff to take, pending proceedings, when, § 1747. Custody of minor, temporary, pending hearing of pro- ceedings, court may provide for when, § 1747. Death of ward or injury to, guardian may sue, § 376. Debts due ward, guardian to recover, § 1769. Debts due ward, may compound, § 1769. Debts of ward, how to be paid, § 1768. Duty to attend to interests of ward, § 1722. Education of ward, guardian has. when, § 1752. Education of ward, sale or mortgage of property, §§ 1777, 1779. Education, authority of guardian over, continues how long, § 1753. Infant to appear by, or by guardian ad litem, § S72. Investment of money, §§ 1779, 1780, 1792. GUARDIANS, V, VI. 925 Investments, authority of court over, § 1792. Investment on order of court, notice of, § 1792. Maintenance of ward, § 1770. Maintenance of ward, allowing guardian credit for, § 1771. Maintenance of ward, applying proceeds of sale to, § 1779. Maintenance of ward by third person, § 1771. Maintenance of ward, how enforced, § 1771. Maintenance of minor out of income of own property, § 1757. Maintenance and education of ward, sale or mortgage of property, § 1777. Management of estate, duty of giiardian, § 1770. Mortgage or sale of estate to maintain ward, § 1770. Mortgage of property for maintenance or education of ward, § 1777. Power and duty of guardian of the estate, § 1753. Power and duty of guardian of the person, § 1753. Powers and duties, testamentary guardian, § 1758. Seduction of ward, guardian may sue for, § 375. Service of summons on guardian, § 411. Service on, equivalent to service on ward, § 1722. Service on ward, guardian may waive, § 1722. Territorial limit of authority, § 1913. Testamentary, powers and duties of, § 1758. To manage estate, how, § 1770. To maintain ward, § 1770. To represent ward in suits, § 1769. Waste, liability for, § 732. VI. Sale of property. Bond for, § 1788. Ck)nsent filed, § 1783. Conveyance, guardian decreed to make, when vendor becomes incompetent, § 1810. Ck)sts, § 1786. Court may order public or private, § 1787. Disposition of proceeds, § 1779. For maintenance of ward, § 1770. Hearing of application for, § 1784. Hearing of application, who may be examined at § 1785. Hearing, compelling attendance of witnesses, § 1785. Investment of proceeds, §§ 1779, 1780. ; GUARDIANS. VI, VII, VIII. Investment of proceeds, court may order, §§ 17.80, 1792. Limitation of action to recover property sold, § 1806. Maintenance and education of ward, sale for, § 1777. Maintenance and edu( alien, applying proceeds to, § 1779. Notice to next of kin, § 17S2. Of minor heirs, conditions of. § 1791. Order for, when granted, § 17S7. Order for, obtained how, § 1781. Order for, service and publication of, § 1783. Order for, to specify what, § 17S7. Order to show cause, § 1782. Order for, expires in cne year, § 1790. Personalty, when s27 Powers and duties of, § 1794. Property, removal of, §§ 1797, 1798. I*roperty, removal of, discharge of person in posses- sion, § 1799. Property, removal of, notice of application, § 1798. Property, removal of, proceedings for, §§ 1797, 1798, Property, removal of, rcreipt, § 1799. Who may apply for, § 1793. IX. Joint guardian. Several may be appointed, § 1807. Joint, allowance of accounts, § 1775. X. Accounting. Accounting by, § 1774. Account to be sworn to, § 1773. Allov/ances for sums spent in maintenance of ward, § 1771. Compelling, § 1773. Failure to account, removal, § 1801. Of joint guardians, § 1775. When to be made, §§ 1773, 1774. XI. Compensation; expenses; allowance. Allowances to, § 177G. Allowances for sums spent in maintenance of ward, § 1771. Compensation of, § 1776. Disbursements, allowance of, § 1776. Expenses of, § 1776. XII. Appeals. Appeal by guardian, official bond sufficient, § 965. Appeal from order respecting letters, time for, § 939. Order and judgments relating to guardianship appeal- able, § 963. Reversal of order appointing guardian, validity of acts, § 966. XIII. Termination of authority. Account, failure to make, removal, § 1801. Authority of continues, how long, § 1753. Authority, what terminates, § 1753. 928 GUARDIANS, XIII, XIV-GUARDIAX AD LITEM. Chambers, power of judge at, in guardianship matters, § 166. Custody of property, guardian's authority continues how long, § 1753. Discharge of, § 1802. Guardianship, how terminated, § 1802. Marriage of infant ward, effect of, §§ i760, 1802. Marriage of does not terminate authority, § 1751. Removal of, § 1801. Removal of, grounds for, § 1801. Removal for contempt, § 1721. Removal, notice of, § 1801. Removal of, appointment of another guardian. § 1801. Resignation of, § 1801. Resignation of, appointment of another guardian, § 1801. Termination of authority, § 1753, XIV. Miscellaneous provisions. Administrator, guardian as, § 1368. Change of venue, petition, § 1760. Change of venue, notice of petition, § 1760. Change of venue, contest of petition, § 1760. Change of venue, hearing of petition, § 1760. Change of venue, order, how obtained, § 1760. Change of venue, to what court may be made, § 1760. Change of venue, proceedings transferred to another county, when, § 1760. Change of venue, jurisdiction of court to v/hich case removed, § 1760. Change of venue, fees of clerk, § 1760. Change of venue, order directing when made, § 1760. Code sections governing appointment, powers and du- ties, § 304. Examination of persons suspected of defrauding wards, or concealing property, § 1800. Practice governing, § 1808. GUARDIAN AD LITEM, appointment of where general guardian, § 372. Appointment of, in justice's court, § 843. For infant, how appointed, § 373. For lunatic, how appointed, § 373. Infant or insane person to appear by general guardian, or by, § 372. Power to appoint, in general, § 1759. HABEAS CORPUS— HUSBA^rD AND WIFE. »a9 HABEAS CORPUS, superior court or judge may issue, § 76. Supreme court may issue, § 51. Supreme judge, issuance of, by, § 54. HANDWRITING, comparisons, § 1945. How proved, §§ 1943-1945. Of decedent, entries as evidence, § 1946. Proof of, on iirobate of will, § 1315. HASTINGS LAW SCHOOL, diploma from, effect of, § 280a. HEARSAY: See Evidence. HEIRS, advancements to, § 1686. May sue for wrongful death, § 377. Proceedings for determination of heirship, § 1664. HIGH-WATER MARK, boundary, § 2077. HIGHWAY. Boundary, highway as, § 2077. Injuring trees, etc., in, §§ 733, 734. Partition proceedings affecting, § 764. HOLIDAYS, acts not to be done on, § 13. Acts which may be done on, § 134. Computation of time, § 12. Courts not open on, except when, § 134. Holding court on day following, § 135. Injunction, writs of, may be Issued apd served on, § 76. Judicial days, § 133. Last day falling on Sunday, next day celebrated, §§ 10, 11. Nonjudicial days, § 134. Performance on day following, § 13. Prohibition, writ of, may be issued and served on, § 76. What days are, § 10. HOMESTEAD, appraisers' report, appeal from, § 963. Association, exemption of shares in, § 690. Disposition of, on death of spouse, § 1723. Inventory of decedent's estate to include, § 1443. Probate, §§ 1474-1486. See Estate of Decedent. Proceedings to terminate upon death of spouse, § 1723. HOSPITALS. Limitations in actions by state for hospital dues, § 345. HOUSEHOLDER. Exemption of property, § 690. HUMBOLDT COUNTY, act increasing number of judges In, p. 765, Stats. HUSBAND AND WIFE: See Divorce; Marriage. Community property, death of spouse, § 1723. Code Civil Proc— 59. 980 HUSBAND AND WIFE— IMPROVEMENTS. Husband not liable for sole trader's debts, § 1821. Issue presumed legitimate, § 1962. Married woman as administratrix, § 1370. Married woman as executrix, § 1352. Married woman may sue or be sued alone when, § 370. Proceedings to determine interest on death of spouse, § 1723. Testimony of, as to legitimacy of child, § 1880. Wife as sole trader, §§ 1811-1821. See Sole Trader. Wife as party, husband when to be joined, § 370. Wife may defend action against herself and husband, § 371. Witnesses, as, § 1881. IDENTITY. Nonresident entitled to letters, identity, how established, § 1379. Opinion of witness as to, § 1870. Presumption of, from identity of name, § 1963. ILLEGALITY. Parol evidence to show in writing, § 1856. ILLEGITIMACY, presumption against, § 1963. ILLNESS: See Sickness. IMPEACHMENT, court of. Is court of record, § 34. Court of, impeachment to be presented by assembly, § 37. Court of. Is the senate, § 36. Court of, jurisdiction of, § 37. Court of, officers of senate are officers of, § 38. Court of, procedure provided in Penal Code, § 39. Court of, senatoi-s to be upon oath, § 36. Court of, senate, quorum of, what constitutes, § 36. IMPRISONMENT. Bail are exonerated by imprisonment of defendant, § 491. Contempt, for: See Contempt. Debtoi in supplementary proceedings, of, § 715. Discharge of person confined on civil process, §§ 1143- 1154. See Prisoner. Judgment debtor, of, § 682. Limitation of actions, how affected by, § 352. Mandamus, for disobedience to, § 1097. Omission to perform act, imprisonment until perform- ance, § 1219. Will, to enforce production of, § 1302. IMPROVEMENTS: See Eminent Domain. Apportionment of, In partition, §§ 763, 764. Ejectment, as setoff in, § 741. IMPROVEMENTS— INFANT. »31 Lien for: See Mechanic's Lien. Partition of site of town or city, in, § 763. INADVERTENCE, relief from, by amendment, § 473. INDEMNITY. Sheriff, indemnity to, on claim of property, § 689. Action against sheriff, notice to sureties, § 1055. INDEX to justice's docltet, § 913. INDICTMENTS, appellate jurisdiction in cases of, § 52. INDIRECT EVIDENCE: .See Evidence. INDISPENSABLE EVIDENCE: See Evidence. INDORSEMENT, presumption as to time of, § 1963. Presumption as to time and place of, § 1963. INFANT: See Guardians; Parent and Child. Administrator, as, §§ 1368, 1369. Adverse possession against, § 328. Appearance of, in justice's court, by guardian, § 843. Attorney for minor heirs, § 1718. Contest of probate, limitation of actions, § 1333. Distribution of estate to, § 1703%. Distribution to treasurer where defendant a minor without guardian, § 1703%. Escheated estate, limitation of actions on claim to, § 1272. Executor, as, §§ 1350, 1354. Guardian ad litem, when appointed, § 372. Guardian ad litem for, §§ 372, 373. See Guardian ad Litem. Guardian ad litem in justice's court, how appointed, § 843. Guardian for: See Guardians. Guardian may consent to partition and execute re- leases, § 795. Juvenile offenders: See Probation Officers. Letters of administration durante minore aetate, § 1354. Limitation of actions, §.§ 328, 352. Limitation of action by, to recover estate of decedent sold by order of court, § 1574. Maintenance of, out of income of own property, § 1757. Mortgage or lease of estate of, §§ 1577-1579. Name, change of, § 1276. Partition, §§ 777, 783, 793. Partition, guardian may receive proceeds of, § 793. 932 INFANT— INJUNCTION. Probationary treatment of juvenile ofEenders, § 131. Service of summons on, § 411. Sole trader must maiiitain minor, § 1820. Witness, as, § 1880. Wrongful death of or injury to, who may sue for, § 376. Wrongful death of, who liable for, § 376. INFERENCE. Admission, inference from, § 1832. Defined, § 1958. Upon what founded, § 1960. See Evidence. INFORMATION in action for usurpation of office, § 803. In escheat proceedings, § 1269. INFORMATION AND BELIEF, denial of allegation on, § 437. INJUNCTION, affidavits, what to show, § 527. Affidavits, service of, § 527. Answer, after, § 528. Appeal from order respecting time for, § 939. Appeal lies from what orders respecting, § 963. Complaint to be verified, § 527. Complaint and verification, service of, § 527. Conclusiveness of judgment against sureties on bond, § 532. Continues in force how long, § 527. Corporation, to suspend business of, § 531. Corporation, to suspend business of, when state a party, § 531. Court commissioner may not grant, § 259. Defined, § 525. Definition of injury to person, § 29. Definition of injury to property, § 28. Dissolving, §§ 532, 533. Dissolution, affidavits, § 532. Dissolution, bond on, where water rights involved, § 532. Dissolving, procedure, § 532. Duration of, where granted prior to trial, § 527. Executions, enjoining injury after sale and before con- veyance, § 745. Executor, restraining during proceedings to prove lost will, § 1341. Foreclosure, injury to property enjoined pending, § 745. Granted by judge, enforceable as order of court, § 525. Grounds for granting, § 526. Hearing, § 530. INJUNCTION— INJURIES. SXt Holidays, may be issued and served on, § 76. How long in force, § 527. Kinds of, § 27. Limitation of action, effect on, § 356. May be issued or served any day, § 134. Modifying, §§ 532, 533. Nuisance, against, § 731. Order to show cause, procedure, § 530. Place of trial, where injunction asked, § 392. Procedure to obtain, § 527. Restraining order, § 530. Sunday, writ may be served on, § 76. Time at which may be granted, § 527. Undertaking, § 529. Undertaking, exception to sureties, § 529. Undertaking, justification of sureties, § 529, Undertaking, of whom not required, § 529. Vacating or modifying, § 533. Vacating or modifying, affidavit, § 532. Vacating or modifying, procedure, § 532. Vacating or modifying in cases involving water rights, § 532. Vacating or modifying in cases involving waters, dam- ages, attorneys' fees, § 532. Waste, §§ 526, 745. Waste, enjoining, § 526. Waste, pending time to redeem, enjoined, § 706. Waters, diversion of, not enjoined, bond, § 530. What is, § 525. What required to obtain, § 527. When denied, § 526. When may be granted, § 526. When refused, diversion of waters, bond, § 530. Who may grant, § 525. NJURIES, child, father, mother, or guardian may sue for, § 276. Civil action arises from, § 25. Death, causing, §§ 376, 377. See Wrongful Death. Joinder of claims for, § 427. Kinds of, enumerated, § 27. Liability of steamers and vessels for, § 813. Liability, on entry for survey of land, § 743. Liability for, after sale on execution, § 746. Place of trial in actions for, §§ 395, 832. To child, father, etc., may sue for, § 376. To property, defined, § 28. To person, defiiixed, § 29. 934 INQUEST— INSANE PKKSONS. INQUEST, jury of: See Jury. Jury of, defined, § 195. Jury of, how summoned, §§ 235, 254. Manner of impaneling jury of, § 254. INSANE ASYLUM. Limitations in actions by state for tiospital dues, § 345. INSANE PERSONS: See Guardians. Adverse possession against, § 328. Administrator, as, §§ 1368, 13G9. Appearance by, in justice's court, by guardian, § 843. Contest of probate, limitation of action, effect of in- sanity, § 1333. Definition of incompetent, etc., § 1767. Distribution of estate to, § 1703^. Distribution of interest in estate of incompetent to treasurer, § 1703%. Escheated estate, limitation of actions on claim to, § 1272. Guardian, appointment, when made, after hearing, § 17G4. Guardian, accounting by, § 1774. Guardian, bond of, § 1765. Guardian decreed to make conveyance where vendor becomes incompetent, § 1810. Guardian, final accounting by, notice to secretary of state commission in lunacy, § 1774. Guardian of, discharge of, § 1802. Guardian of, "incompetent" defined, § 1767. Guardian, hearing for appointment, incompetent must attend, § 1763. Guardian may consent to partition and execute re- leases, § 795. Guardian may receive proceeds of partition, § 794. Guardian, notice of hearing for appointment, § 1763. Guardian, petition for appointment of, § 1763. Guardian, powers and duties of, § 1765. Guardian, proceedings for restoration of incompetent, § 1766. Guardian, service on, equivalent to service on lunatic, § 1722. Guardian ad litem, when appointed, § 372. Guardian ad litem for, how appointed, § 373. Guardian ad litem in justice's court, how appointed, § 843. Guardian ad litem to appear by, or by guardian, § 372. Incapable, defined, § 1767. INSANE PEUSONS— INSTRUCTION. 935 Incompetent, etc., defined, § 1767. Limitation of actions, §§ 328, 352. Limitation of action by to recover estate sold by order of court, § 1574. Mentally incompetent, definition of, § 1767. Mortgage or lease of estate of, §§ 1577-1579. Opinion of intimate acquaintance as to, § 1870. Opinion of subscribing witness as to sanity, § 1870. Partition, guardian may receive proceeds of, § 794. Restoration of, proceedings for, § 1766. Service of summons on, § 411. Territorial limits of authority, § 1913. Witness, as. § 1880. INSANITY, effect of, on limitation of actions, §§ 328, 352, 1574. Effect of on claim to escheated estates, § 1272. INSCRIPTIONS as evidence, § 1870. INSOLVENCY. Law governing insolvent debtors, § 1822. Wages and salaries as preferred claims, § 1204. INSPECTION OF WRITINGS, contempt for disobedience to order respecting, § 1000. Docket of judgment open for, § 673. Execution book is open to, § 683. Party making, need not put in evidence, § 1939. Produced by witness to refresh his memory, § 2047. Public records open for, § 1892. Refusal of, its effect, § 449. When may be demanded, § 1000. Writing shown witness, adverse party may inspect, § 2054. Written instrument, demand for, § 449. INSTRUCTION, courts open any day to give, § 134. Erroneous, when disregarded, § 475. Evidence in general, as to the. § 2061, Further, after jury retired, § 614. General nature and requisites of, § 608. Holidays, given on, § 134. New trial, for disregard or misapprehension of, § 662. Preponderance of evidence, as to, § 2061. Reasonable doubt, as to, § 2061. Special, function of court respecting, § 609. Testimony, court stating, to inform jury they are ex- clusive judges of facts, § 608. Weight and character of evidence, as to, § 2061. What must be furnished on request, § 608. 92G INSTRUCTION— INTERVENTION. Written statement of points to be furnished, § 608. Written statement of points to be signed, § 608. INSTRUMENT, construction of, §§ 1856-1866. Demand for inspection, § 449. Execution of, defined, § 1933. Pleaded how, in justice's court, §§ 886, 887. Pleading, genuineness of, how admitted or controverted, §§ 447-449. INSURANCE, life, testimony of physician in action op policy, § 1882. Insurers in separate policies may be joined, § 383. Mortgaged estate of decedent, of, § 1578. Surety corporations, duty in regard to, p. 762, Stats. INSURANCE COMMISSIONER, corporation formed to act as surety, examination into by insurance com- missioner, and duties of, § 1056. INSURRECTION, change of place of holding court, on ac- count of, § 142. INTEREST, claims against decedent's estate, on, § 1513. Damages in eminent domain, on, § 1249. Disbursements in partition proceedings, on, § 801. Disqualifying judge or justice, § 170. Disqualification of probate judge to act because of, §§ 1430-1432. Foreclosure, debt falling due at different times, § 728. Judgment, on, §§ 682, 1035. Mortgage of decedent's estate, on, § 1578. Rebate, on foreclosure, § 728. Receiver, funds in hands of may be invested, § 569. Redemptioner must pay what, §§ 702, 703. Referee, interest disqualifying, § 641. INTERLOCUTORY JUDGMENTS, appealability of, § 963. Appeal, time for, § 939. Order or decision deemed excepted to, § 647. INTERPLEADER, when and how maintained, § 386. INTERPRETATION. Writings, interpretation of, § 1857. INTERPRETER, contempt, when guilty of, § 1884. Italian, appointment and compensation of in certain cities, p. 775, Stats. Summoned-, may be when, § 1884. INTERVENTION, answer to, § 387. Demurrer to, § 387. Service of, on parties and attorneys, § 387. INTERVENTION— ITALIAN INTERPRETER. 937 When and how effected, § 387. Who may intervene, § 387. INTERROGATORIES, annexed to commission to take testi- mony, § 2025. INVENTORY: See Estate of Decedent. Of attached property, § 546. IRREGULARITY, of proceedings, gi'ound for new trial, § 657. Effect of, in proceedings on judicial sale, § 708. IRRELEVANT MATTER, may be stricken out, § 453. IRRIGATION. Injunction to prevent diversion, refusal, bond, § 532. ISSUES, bringing to trial, § 594. By whom tried and order of trial, § 592. Calendar, § 593. Defined, § 588. Fact, jury, how waived, § 631. Fact, of, how arises, § 590. Fact, of, reference, § 592. Fact of, trial of, by court, § 592. Fact, tried by jury generally, § 592. General denial puts in issue, what, § 437. Heirship, issues to determine, how tried, § 1664. In proceedings against joint debtor after judgment, how tried, § 994. Justices' courts, in: See Justice's Court, XIV. Kinds of, § 588. Law, issue of to be first tried, § 592. Law, raised by demurrer, § 589. Law, of, how tried, § 591. Law, of, how tried in justice's court, § 881. Law, of, proceedings after determination of, § 636. Presumption that all matters within, were passed upon, § 1963. Probate court, in, how tried, § 1716. Reference of, when ordered, § 638. Special, not made by pleading, how tried, § 309. ITALIAN INTERPRETER, appointment and compensation of in certain cities and counties, p. 775, Stats. 938 JOINDER— JUDGES. JOINDER of causes of action, § 427. Misjoinder, demurrer for, § 430. What actions may be joined, § 427. JOINT AUTHORITY, majority may act, § 15. JOINT CONTRACT, action on in justice's court, service outside of county, § 848. Appearance, by other, where one defendant appears, § 406. Service of summons where one or more appear, § 406. JOINT DEBTORS, appearance by other, where one or more appear, § 406. Contribution, § 709. Declaration of, when admissible, § 1870. Judgment not to exceed amount remaining unsatisfied, § 994. New complaint need not be filed in proceedings against, § 990. Not summoned in original action may be summoned after judgment, § 989. Proceedings against after judgment, answer, § 992. Proceedings against after judgment, defenses, § 992. Proceedings against after judgment, issue, how tried, § 994. Proceedings against after judgment, what constitute the pleadings, § 993. Several, part served may be proceeded against, § 414. Summons to after judgment, affidavit for, § 991. Summons to after judgment, what to contain, § 990. Summons, service and return of, § 990. JOINT GUARDIANS, account of, § 1775. JOINT OWNERS, declarations of, when admissible, § 1870, JOINT TENANTS: See Co-tenancy, Partition. Any number may sue or defend for all, §§ 3S1, 384. Parties in suits concerning, §§ 381, 384. Partition, may sue for, § 752. Waste, liability for, § 732. JUDGES, absence of, adjournment, § 139. Absence of, proceedings in, § 139. Acknowledgments, may take, § 179. JUDGES. ' M9 Affidavits, may take, §§ 179, 2012, 2013, 2014. Affidavit in another state, may take, § 2013. Affidavit, may be taken before, § 2012. Affi-davit of prejudice, proceedings on, § 170. Attorney acting as judge pro tempore, oath, authority, and powers of, § 72. Attorney may be selected to act as judge pro tempore, § 72. Chambers, powers at, §§ 1C5, 166. Changing place of holding court, §§ 142, 143. Change of, for bias, etc., procedure, § 170. Contempt, §§ 1209-1222. See Contempt. Decision, meaning of, § 1033. Depositions, may take, § 179. Directing sheriff to provide suitable rooms, § 144. Disqualification of, changing place of trial for, § 397. Disqualification to practice law, § 171. Disqualification to sit or act, what matters amount to, § 170. Disqualification, waiver of, § 170. Duty in construction of contracts and statutes, § 1858. Failure to attend, sheriff or judge to adjourn to what time, § 140. Incidental powers and duties of courts, §§ 128-130. Number of in various counties, reference to acts relat- ing to, pp. 765, 766. Partner, practicing law, not to have, § 172. Powers of, at chambers, §§ 165, 166. Powers of, out of court, §§ 176, 1305. Powers of judicial officers in con-duct of proceedings, § 177. Powers may be enforced by contempt proceedings, § 178. Presumption that judge acts within jurisdiction, § 1963. Probate, disqualified to act, in what cases, § 1430. Probate, disqualified to act, transfer of and re-transfer of proceedings, §§ 1431, 1433. Questions of law addressed to, § 2102. Rules, power to make, § 129. Rules, when take effect, § 129. Secretary of, in cities over 200,000, p. 764, Stats. Subsequent applications for orders refused, when pro- hibited, § 182. Vacancy in office does not affect proceedings, § 184. Witness as, § 1883. See Court; Justice of Peace; Probate Court; Superior Judge; Supreme Court Justice. 940 JTTDGMENT. JUDGMENT: See Judgment-roll; Probate Court. Acknowledgment of satisfaction any judge or justice may take, § 179. Actions on, how pleaded, § 456. Adverse possession under, what constitutes, §§ 322, 323. Adverse claim, determining, §§ 739 et seq. See Quiet- ing Title. Affirmative relief to defendant, § 606. Agreed case, judgments: See Agreed Case. Answer, absence of, what relief granted plaintiff, § 580. Appeal from: See Appeal. Appeal from orders after final, § 9G3. Appeal may be taken from what, § 963. Appealability of interlocutory judgments, § 963. Appeal from, time for, § 939. Appeal from interlocutory, time for, § 939. Appeal, costs on when judgment modified, § 1027. Appeal, reversal of, not decreed except for substantial error, § 475. Appealed to superior court, rendered in case, § 980. Arrest of debtor, § 682. Associates in business, against, effect of, § 388. Attachment, in, how satisfied, § 550. Attorney's authority to acknowledge satisfaction of, § 283. Barred by limitation, execution on, § 685. Bill of exceptions, settling after, § 651. Book, decrees to be entered in, § 668. Book to be kept by clerk, § 668. Causes submitted without action, in, §§ 1138, 1139, 1140. Causes submitted without action, enfo'cement of, § 1140. Clerk, duty to enter judgment, § 664. Collusion, impeachment of judgment for, § 1916. Conclusive as to whom, in partition, § 766. Conclusiveness of: See Res Judicata. Contempt, disobedience of judgment, § 1209. Contribution among debtors, § 709. Copy of, as part of judgment-roll, § 670. Contempt, in, § 1218. Costs to be included in, § 1035. Counterclaim exceeds plaintiff's demands, when, § 666. Counterclaim, judgment where afiirmative relief de- manded, § 666. Death of party, after, § 669. Death of party, after, not a lien, § 669. JUDGMENT. 941 Death of party, when execution may issue after, § 686. Decedent, against, order of payment, § 1643. Decedent's estate, judgment not lien on, when, §§ 1504, 1506. Decision from which appeal may be taken deemed ex- cepted to, § 647. Decision, meaning of, § 1033. Decision means signing and filing of findings of fact and conclusions of law, § 1033. Decision must be written, § 632. Decision to be filed within thirty days after submis- sion, § 632. Default: See Default. Defined, § 577. Demurrer, on, proceedings after, § 636. Docket is what, § 672. Docket, how kept, § 672. Docket, what to contain, § 672. Docket, open for inspection, § 673. Docketing, § 671. Dormant, execution on, § 685. Enforcing, manner of, § 684. Entry of judgment upon decision, § 633. Estoppel to deny, §§ 1908-1915. Evidence, as, § 1962. Execution on, § 682. Execution on dormant, § 685. Expires, when, §§ 671, 674, 681, 685. Facts found and conclusions of law must be stated separately, § 633. Findings of fact and law must be stated separately, § 633. Foreign judicial record, copy of, when admissible, § 1907. Foreign country, judicial record of, how proved, § 1906. Former, evidence of, § 1962. Former, to be pleaded when, § 1962. Fraud, impeachment of judgment for, § 1916. Impeaching judicial record, manner of, § 1916. Impeachment of judicial records, grounds for, § 1916. Interest on, §§ 682, 1035. Interest Included in, § 1035. Interlocutory, appeal lies from, § 963. Interlocutory, decision deemed excepted to, § 647. JUDGMENT. Joint debtor, proceedings against after judgment, §§ 989-994. Judgment -booli, clerk to keep, § 668. Judgment-roll: See Judgment-roll. Judgment-roll, what papers constitute, § 670. Judicial record, definition of, § 1904. Jurisdiction, burden of proving where judgment pleaded, § 456. Jurisdiction sufficient to sustain, § 1917. Jurisdiction, want of, impeachment of judgment for, § 1916. Justices' courts, in: See Justice's Court. Lien, duration of, § 671. Lien, when begins, § 671. Lien continues how long in another county, § 674. Lien of in another county, when transcript filed there, § 674. Lien of estate of decedent, when not, § 1506. Lien on real property in another county, § 674. Lien, stay on appeal, effect on, § 671. Limitation of action, on reversal of, § 355. Limitation of action on, § 336. May be against one party and action proceed as to others, § 579. May be for or against one or more of the parties, § 578. May determine rights of parties on each side as be- tween themselves, § 578. Merits, to be on, except v/lien, § 582. Nonsuit, grounds for, § 581. Nonsuit may' be entered when, § 581. Nonsuit, §§ 581, 582. See Nonsuit. Occupation of land under, when adverse, § 322. Officers, judgment against, how enforced, § 710. Particular proceedings: See Particular Title. Parties, when deemed the same, § 1910. Payable in kind of money alleged in complaint, § 667. Payable in kind of money received by person in fidu- ciary relation, § 667. JUDGMENT. 943 Payable in kind of money specified in obligation, § G67. Payable in specified kind of money, notice at execu- tion sale, § 692. Pleading, §§ 456, 1962. Pleading, jurisdictional facts, § 456. Presumption that judgment correctly determines rights, § 19G3. Presumption that nonconclusive judicial record cor- rectly determines rights, § 1963. Prisoner, discharge of, §§ 1143-1154. See Prisoner. Prisoner, judgment remains in force on discharge of, § 1152. Probate court, of, in general, what to contain, § 1704. Proceedings after, against joint debtor not summoned In original action, §§ 989-994. Receiver to carry into effect, § 564. Referee's finding on, § 644. Relief from, for mistake, inadvertence, etc., § 473. Relief from when defendant not personally served, § 473. Relief that can be awarded plaintiff, § 580. Remitting to superior court on case transferred to su- preme court, § 56. Remittitur from supreme court, § 958. Rendered in cause appealed to superior court, force of, § 980. Replevin, in, alternative, § 667. Res judicata: See Res Judicata, Review of: See Appeal. Reviving, § 685. Reviving in favor of purchaser under execution, § 708. Revivor of, when execution purchaser evicted, § 708. Satisfaction, attorney may acknowledge, § 283. Satisfaction of, acknowledgment or indorsement of, § 675. Satisfaction of, by attorney, § 675. Satisfaction of, by return of execution, § 675. Satisfaction of, how made, § 675. M4 JUDGMENT— JUDGMENT-ROLU Setting aside in equity, § 473. Settling bill of exceptions after, § 651. Sister state, judgment of, how enforced, § 1913. Sister state, judicial record of, effect of, § 1913. Sister state, judicial record of, how proved, § 1905. Special proceeding, in, definition of, § 1064. Special verdict, judgment on to be entered, § 628. Time to enter judgment on verdict, § 664. Trial, deemed excepted to, § 647. Time for entering, when postponed, § 664. Time for entering, when trial by jury, § 664. Time for entry, § 671. Transcript filed in any county, judgment becomes lien there, § 074. Transferred cases, in, proceedings after, § 400. Vacation, in what cases superior court may vacate its judgment, § 663. Vacation of, grounds for, § 663. Vacation of, motion for, § 663%. Vacated, judgment may be and another judgment en- tered when, § 663. Vacation of special verdict, judgment on, § 663. Vacation, motion for, notice of, § 663i^. Vacation, motion for when to be made, § 663 1/^. Vacation, relief from, time of motion for, § 473. Vacation, notice of intention, what to state, § 663%. Vacation of, notice of motion for, time to file, § 663%, Verdict, judgment on, when to be entered, § 664. When defendant entitled to aihrmative relief, § 666. JUDGMENT BY CONFESSION: See Judgment. JUDGMENT BY DEFAULT: See Default. JUDGMENT-BOOK to be kept by clerk, § 668. JUDGMENT-ROLL a part of record on appeal, § 661. Appellant must furnish, § 950. In cause submitted without action, § 1139. Judgment on appeal to be attached to, § 958. JUDGMEJSIT-ROLL— JUDICIAL REMEDY. 9ia What constitutes on certiorari, § 1077. What constitutes on confession of judgment, § 1134. What constitutes, on dissolution of corporation, § 1233. What papers constitute, § 670. JUDICIAL DAYS, what are, and what are not, §§ 133-135. JUDICIAL NOTICE, court to declare to jury, § 2102. Is taken of what facts, § 1875. One of branches of evidence, § 1827. JUDICIAL OFFICER, acknowledgments and affidavits, may take, § 179. Contempts, may punish for, § 178. Depositions, may take, § 2031. Enumeration of powers, § 177. Exempt from jury duty, § 200. Incidental powers and duties of, §§ 176-179. In general, §§ 156-161. Jurisdiction, means to carry into effect, § 187. Partner practicing law, not to have, § 172. Powers of as to conduct of business, § 177. Powers of, out of court, § 176. Settlement of bill of exceptions by, § 653. Vacancy, effect of, § 184. JUDICIAL RECORD as evidence, §§ 1905-1907. Authentication of, §§ 1905-1907. Copy of, of foreign country, § 1907. Defined, § 1904. Foreign, what must contain, § 1906. Foreign country, how authenticated, § 1906. Foreign judgment, its effect, § 1915. Jurisdiction required to sustain, § 1917. Justices' judgment in other state, how proved, §§ 1921, 1922. Manner of impeaching, § 1916. Of court of admiralty, § 1914. Of sister state, its effect, § 1913. JUDICIAL REMEDY: See Remedy. Code Civil Proc— 60 946 JUDICIAL SALE— JUROR. JUDICIAL SALE: See Execution. JURISDICTION: See Courts; Justice's Court. Acquired at what stage of proceeding, § 416. Appearance cures want of service, § 681. Authority of court where no procedure provided, § 187. Change of name, jurisdiction of proceeding for, § 1275. Concurrent, of justices and superior courts, in what cases, § 113. Court of impeachment, of, § 37. Court first obtaining in guardianship proceedings ex- cludes jurisdiction of other courts, § 1796. Demurrer for want of, § 430. Judgment when amount in excess of, remitting excess, § 894. Justice of peace, of: See Justice's Court, II. Means to carry into effect, § 187. Orders and decrees of probate court need not recite jurisdictional facts, § 1704. Pleading judgment, jurisdictional facts, § 456. Presumption in favor of, § 1963. Presumption that court or judge acts within, § 1963. Sufficiency of, to sustain judgment, § 1917. Superior court: See Superior Court. Supreme court: See Supreme Court. Transferred cause, § 399. V/ant of, impeachment of judgment for, § 1916. Y^^'aived, not by failure to object, § 434. What constitutes, § 1917. JUROR: See Jury. Admonition, on separation, § 611. Affidavit of, of misconduct of jury, § 657. Attendance of, compelling by attachment, § 238. Attendance of, how enforced, § 238. Ballot box, §§ 215, 219. Challenge, either party may, § 601. Challenge, how tried, § 603. Challenge, peremptory, how taken, § 601. Challenge, peremptory, number of, § 601. Challenge is peremptory or for cause, § 601. Challenge for cause, grounds for, § 602. Challenge, parties to join in, when, § 601. Challenge, who may be examined as witness on, § 613. Challenge in justices' courts, § 885. Clerk, when shall draw, § 215. junoR. sir Clerk's certificate and list of, to be delivered to sher- iff, § 219. Clerk's certificate of drawing, § 219. Competent, who are, § 198. Competent, who are not, § 199. Contempt by, § 1209. Contempt, conversing about case, § 1209. Contempt, receiving communication and not divulging it, § 1209. Deliberation of, how conducted, § 613. Deliberation of, what papers, etc., may and may not take with, § 612. Deliberation, three-fourths can find verdict, § 613. Deposit of names in grand and trial jury-box, § 209. Drawing, superior judge may direct jury to be drawn, § 241. Drawing, clerk, when to draw, § 215. Drawing, by clerk, how conducted, §§ 219, 600. Drawing, from box, § 600. Drawing, names to be drawn from jury-box, § 211. Drawing, by clerk, preservation of ballots drawn, § 219. Drawing, by clerk, rejection of names, § 219. Drawing, clerk's certificate of, § 219. Drawing, for courts of record, §§ 214-220. Drawing, and summoning fortliwith, how and when done, § 226. Drawing, names of jurors not drawn to be replaced in box, § 220. Elisor, summoning of jurors by, §§ 226, 227. Elisor, compensation for summoning jurors, § 228. Excuse from service, grounds for, § 201. Exempt from jury duty, who are, § 200. Exemption to serve as, affidavit of, § 202. Exemption to serve as, how claimed, § 202. Fine for nonattendanee, § 238. Inquest, how summoned, § 235. Justices' or police courts, for, how summoned, §§ 230, 231. Justice's or police court, summoning, return of ofii- cer, § 232. List of, by v/hom and when made, § 204. List of, clerk to dispose of how, § 209. List of, clerk's duty as to, § 209. List of, how made and kept, §§ 205, 206, 94g JUROR— JURY. List of, number of names, § 206. List of, to be placed with county clerk, § 208. Names of jurors not drawn to be placed on list for succeeding year, § 211. Oath of, § 604. Order of judge for drawing jury, § 214. Order for, clerk when to draw, § 215. Polling, § 618. Polling, disagreement on, proceedings, § 618. Presumption that all matters within issues passed upon, § 1963. Qualifications and exemptions of, §§ 198-202. Question of fact to be tried by, § 2101. Referee, disqualified as, § 641. Regular jurors to serve one year, § 210. Selecting and returning for courts of record, §§ 204-211. Selection of, § 204. Selection of, who to make, § 204. Selection of, how made, § 205. Selection of, in proportion to population, § 206. Selection of, lists to contain how many names, § 206. Selection of, who may be selected, § 205. Separation, §§ 611, 613, Sheriff to summon, how, § 225. Sheriff to summon, return of list, § 225. Sick, proceedings in case of, § 615. Summoning, for courts not of record, §§ 230-232. Summoning, for courts not of record, officer's return, § 232. Summoning, for courts of record, §§ 225-228. Summoning, for justices' or police courts, § 230. Summoning, to complete panel, § 227. Summoning juries of inquest, § 235. Superior judge may direct jury to be drawn, § 241. To serve one year, § 210. Verdict of: See Verdict. When may be drawn and summoned forthwith, § 226. Witness, as, § 1883. Who competent to act as, § 198. Who exempt from jury duty, § 200. Who may be excused from jury duty, § 201. Who not competent to act as, § 199. JURY: See Jurors. Adjournment of court while jury out, § 617. JURY. M' Admonition, on separation, § 611. Changing place of trial, for impartial, § 397. Courts open any day to discharge, § 134. Defined, § 190. Deliberation of, how conducted, § 613. Deliberation of, what papers, etc., may and may not take with them, § 612. Deliberation, three-fourths can find a verdict, § 613. Discharge before verdict, retrial of cause, § 616. Docket of justice of peace must contain demand for, § 911. Drawing: See Jurors. Exempt from jury duty, who are, § 200. Forcible entry and detainer, in, § 1171. Formation of, § 600. Grand jury defined, § 192. Grand jury, §§ 241-243. See Grand Jury. Impaneling, in courts not of record, §§ 250, 251. Impaneling, in criminal case must be as prescribed by Penal Code, §§ 247, 251. Imipaneling, in justices' and police courts, manner of, §§ 250, 251, Impaneling in will contest, § 1313. Impaneling grand juries, §§ 241, 242. Impaneling jury of inquest, § 254. Impaneling trial jurors in courts of record, §§ 246, 247. Impaneling trial jury, manner of, §§ 240, 247. Inquest, how summoned, § 235. Inquest, jury of, defined, § 195. Instructing, § 2061. See Instruction. Issues to be tried by, § 592. Judges of effect of evidence, in general, § 2061. Justice's court, in: See Justice's Court; XVI. Kinds of, § 191. Mandamus, in, § 1090. Misconduct of, affidavit of jury, § 657. Misconduct of, new trial, § 657. Must find amount of recovery, when, §§ 626, 627. Number of grand jury, § 192. Number of trial jury, § 194. Ordinance, action for violation of, jury trial, § 1744. Panel, summoning jurors to complete, § 227. Police court, when defendant entitled to, § 932. Polling, § 618. Postponement of trial in justice's court when jury de- manded, § 874. 950 JURT— JUSTICE OF PEACE. Presumption that all matters within issues were passed upon by, § 1963. Questions of fact, when to be decided by, § 2101. Quieting title, jury trial in action for, § 738. Recovery, must find amount of, when, §§ 626, 627. Separation, §§ 611, 613. Sick juror, proceedings in case of, § 615. Trial by, of issues in probate court, § 1717. Trial by, of special issue not made by pleadings, § 309. Trial by, on petition for revocation of probate, § 1330. Trial by, when and how waived, § 631. Trial jury defined, § 193. Trial: See Trial. Verdict of, §§ 624-682. See Verdict. Verdict, how declared, § 618. Verdict, informal, proceedings on, § 619. Verdict, prevented, retrial of cause, § 616. Verdict, sealed, § 617. Verdict, sealed, rendered during adjournment, § 617. . Verdict, three-fourths can find, §§ 613, 618. View by, of premises, § 610. Waiver of, § 592. Waived, how, § 631. Will contest, jury trial in, § 1312. See Jurors. JUSTICE OF PEACE: See Justice's Court. Acknowledgment, aflBdavit, deposition, may take, § 179. Affidavit, may take. § 2012. Attachment, issuance of: See Justice's Court, VIII. Attorney, must be where, § 103. Blanks must be filled in all papers issued by, except subpoenas, § 920. Cannot practice law before another justice, § 103, Change of, for bias, etc., procedure, § 170. Citizen, justice must be, § 159. Clerk, §§ 86 et seq. See Justice's Clerk. • Constable may not act as attorney, § 842. Depositions issuing from justice's court, how taken § 2024. Deposition, may take, § 179. Disability of, attendance of another justice, adjourn- ment, resuming jurisdiction, § 922. Disability of, attendance of another justice, entry of proceedings, § 922. Disability of, attendance of another justice on his be- half, § 922. JUSTICE OF PEACE. 951 Disability of, attendance of another justice, powers of § 922. Disqualification of, what matters amount to, § 170. DisqualiJicatlon to practice law, §§ 96, 103, 171. Disqualification, waiver of, § 170. Disqualified, transfer of cause to another, § 398. Eligibility, § 103. Expiration of office, must deliver papers and dockets to successor, § 914. Fees, collecting, reporting and paying into treasury, ' § 103. Holding court for another, § 105. Jurisdiction, § 103. Mayor not to act as in cities over 10,000, p. 763, Stats. Moneys collected, must receive and pay same to par- ties, § 921. Not to have law partner, §§ 103, 172. Not to practice before justices' court, § 171. Number of, §§ 85, 103. Office, to be provided with, § 103. Qualifications of, § 159. Powers and duties generally, § 103. Residence of, § 159. Salaries, how paid, § 103. Salaries in cities and counties over one hundred thou- sand, § 103. Salaries of in certain cities, §§ 97, 103. Salaries to be sole compensation, § 103. Succession of justices, on change of boundaries, § 107. Succession of justices, transfer of records, etc., § 98. Successor, when superior court shall designate, § 918. Successors of others, what justices are, §§ 98, 107, 917. Successor has authority of predecessor, § 916. Term of office, § 110. Transfer of action to another court, manner of, §§ 398, 399. Transfer of books, papers, etc., to, p. 763, Stats. Vacancies, how filled, § 111. Vacancy, papers and dockets to be deposited where, § 915. Vacancy, proceedings before successor appointed, § 915. In cities and counties. Absence or disability, reassignment and transfer ot action, § 90. Clerk of not to act as attorney, § 96. i Jt'STICE OF PEACE. Disqualification to act as attorney, §§ 96, 103. Election of, § 85. Fees, payment into treasury, § 91. Minutes of proceedings, to keep, § 93. Minutes, to be certified, returned and filed, § 93. Number of, § 85. Number of sessions, § 85. Oflices and office hours, § 88. Office rooms, how provided, § 88. Offices, expense of, how met, § 88. Pleadings and papers to be certified, returned and filed, § 93. Presiding, appointment and removal, § 85. Presiding, assignment of causes by, §§ 89, 90. Presiding, disability or absence of, substitute, § 85. Presiding justice, salary of, § 97. Rooms, attendants and supplies to be furnished, § 88. Salary of, § 97. Sheriff and deputies, ex oflacio oflBcers, § 87. Sheriff may be directed to furnish rooms, etc., § 88. Successors of others, what justices are, § 98. Successors, powers and jurisdiction of, § 98. Supervisors to furnish suitable rooms, § 88. in townships. At least one in each- township, § 103. Change in boundaries of township or county, succes- sion of justices, § 107. Disqualification to practice law, § 103. Election of, § 103. Eligibility, § 103. Fees, collection, report and payment into treasury, § 103. Holding court for another justice, effect of proceedings, § 105. Holding court for another, power of, § 105. Holding court for another, entries in docket, § 105. Number of courts, § 103. Number of justices, § 103. Salary, how paid, § 103. Salary of, § 103. Salary to be sole compensation, § 103. Successors of others, what justices are, § 107. Successor, on change of boundaries, § 107. What justice may hold court for another, § 105. Where held, § 104. JUSTICES' CLERK-JUSTICES' COURTS. 953 JUSTICES' CLERK, appointment, § 86. Attorney, •disqualification to act as, § 96. Bond and oath, § 86. Bond, additional, § 86. Cities and counties of over 200,000, clerk and assistants in, pp. 776, 777 Stats. Deputies, appointment of, § 86. Deputies, authority of, to take affidavits and oaths, § 86. Deputies, liability for, § 86. Disqualification to act as attorney, § 96. Docket, duty to keep, § 93. Fees paid in actions, duty as to, § 91. Minutes of proceedings, filing, § 93. Oath and bond, § 86. Office hours, § 88. Record of proceedings of court, shall keep, § 89. Salary, § 97. Salary of deputy clerk, § 97. Subpoenas, issue by clerk, § 87. Term of office, § 86. JUSTICES' COURTS. I. Nature of; holding of and sessions; code pro- visions applicable. II. Jurisdiction. Hi. Attorneys in, who may act as. IV. Actions, how commenced; assignment of causes in. V. Pleadings. VI. Counterclaim. VII. Summons. VIII. Attachments; arrest. I IX. Process; subpoenas. X. Dockets; records; minutes. XI. Compromise; dismissal. XII. Place of trial. Xiil. Continuance. XIV. Trial; practice; rules; Issues. J JUSTICES' COURTS, I. 11. XV. Appearance; appearance by guardian. XVI. Jury. XVII. Contempt. XVIII. Particular actions In. XIX. Verdict. XX. Judgments. XXI. Executions. XXII. Costs; fees; undertaking. XXIII. Appeals. See Justices' Clerk; Justice of Peace. Berkeley, act creating in, p. 778, Stats. I. Nature of; holding of and sessions; code provisions applicable. Always open, §§ 89, 104. Are courts of peculiar and limited jurisdiction, § 925. Code provisions applicable to, § 925. Number of in townships, § 103. Place of holding, § 104. Record, justices' courts are not courts of, § 34. Sessions, number of, § 85. Sessions, where held, § 104. II. Jurisdiction. Action for collection of licenses, § 103. Action in wrong jurisdiction, objection to, appeal, § 890. Action In wrong jurisdiction, objection to, waiver, § 890. Certifying cases to superior court, § 92. Civil, § 112. Civil, includes what causes, § 112. Oitles and towns, jurisdiction and powers, pp. 777, 778 et seq. Concurrent with superior court, § 113. Concurrent with superior court in cases of forcible entry, § 1163. Does not extend to ships, seamen's wages, etc., § 114. Evidence not admissible upon what questions, § 838. Forcible entry and detainer, jurisdiction in, § 838. Has over what offenses, § 115. In cities, § 103. In general, §§ 89, 108. Mandamus, cannot Issue, § 1085. JUSTICES' COURTS, II, III, IV, V. 95b Misdemeanors, § 115. Not to trench upon jurisdiction of courts of record § 114. ' Ordinance, jurisdiction for violation of, § 103 Restricted, § 114. Territorial extent, §§ 94, 106. Transfer to superior court, jurisdiction of superior court. § 838. Violation of ordinance, § 103. When amount found due exceeds, excess remitted, § 894. Wrong, objection to action in, § 890. III. Attorneys in, who may act as. Letter of attorney to act as counsel in justice's court, § 9G. License not necessary to practice, § 281. Who may act a.s, § 842. Who may not act as, § 96. IV. Actions, how commenced; assignment of causes in. Action commenced by iiling complaint, § 839. Assignment of causes by presiding justice, §§ 89, 90. Reassignment and transfer of actions, § 90. V. Pleadings. Actions in, form, § 89. Actions, how entitled. § 89. Amendment of pleadings, adjournment, § 859. Amendment of pleadings, costs, § 859. Amendment of pleadings, in general, § 859. Amendment of pleadings, on demurrer, § 858. Amended pleading, adverse party may answer or de- mur, § 860. Amended pleading, answer or demurrer to. time to file, § 860. Answer in, § 852. Answer in. plaintiff may demur to, when, § 857. Answer, when demurrer overruled, § 858. Answer may contain what, § 855. Answer, in general: See Answer. Complaint in, § 852. Complaint, action commenced by filing, § 889. Complaint, date of filing, indorsement of, § 840 Complaint defined, § 853. Complaint, filing, commences action, § 839, Complaint may be copy of Instrument, 9 868. i JUSTICES- COURTS, V, VI, VII. Compromise, costs, § 895. j Complaint, in general: See Complaint. { Demurrer, § 852. Demurrer, amending pleadings, § 858. Demurrer, judgment by default after, § 872. Demurrer to the answer, § 852. Demurrer to answer, grounds for, § 857. Demurrer to answer, proceedings on, § 858. Demurrer to answer, time for, § 857. Demurrer to complaint, proceedings on, § 858. Demurrer to complaint, time for, § 854. Demurrer, In general: See Demurrer. Pleading account, manner of, § 886. Pleadings, amendment in general, § 859. Pleadings, amendment on demurrer, § 858. Pleadings, entry of oral, § 851. Pleadings, filing of, §§ 89, 851. Pleadings, form of, § 851. Pleadings, oral, § 851. Pleadings, verification, § 851. Pleadings in, are what, § 852. Pleading written instrument, genuineness almltted, when, § 887. Pleading written instrument, manner of, § 886. Pleadings, in general: See Pleadings. VI. Counterclaim. Answer may contain, § 855. Omission to set up, fatal, § 856. Pleading written instrument, § 886. VII. Summons. Alias summons, §§ 846, 847. Alias, number of, § 847. Alias, when may issue, § 846. Blanks must be filled, § 920. By whom may be served, § 849. Cannot be served out of county, except in what casos, § 848. Directed to defendant, § 844. How issued, § 844. How served, § 849. How served outside of county, § 849. Indorsement of attorney's name, § 844. In general: See Summons. May be served out of county, in what cases, 9 848. JUSTICES' COURTS, VII. VIII. 96' May be waived, how, § 841. Must contain, what, § 844. Must issue within year, § 840. Parties, summons must name, § 844. Process: See also post, IX. Return of, §§ 87, 849. Service by publication, § 849. Territorial limitation on service of, § 848. Time for appearance, specification of, § 845. To be issued without blanks, § 920. To be served out of county, certificate to, § 849. VIII. Attachments; arrest. Arrest, entry of judgment when defendant subject to, § 893. Arrest of defendant, affidavit for, § 862. Arrest of defendant, certificate of, § 864. Arrest of defendant for embezzlement, § 861. Arrest of defendant for fraud, § 861. Arrest of defendant, grounds for, § 861. Arrest of defendant in action for fine or penalty, § 861. Arrest of defendant, officer must notify plaintiff, § 864. Arrest of defendant, undertaking for, § 862. Arrest of defendant, when may be ordered, § 861. Arrest where defendant about to depart state, § 861. Arrested defendant, custody of, § 865. Arrested defendant, proceedings if justice absent, dis- qualified, etc., § 863. Arrested defendant must be taken before justice at once, § 863. Attachment, affidavit for, § 866. Attachment, affidavit what to state, § 866. Attachment, direction of writ to sheriff, § 868. Attachment, general sections of code apply to, § 869. Attachment, issuance of, § 866. Attachment, substance of writ, § 868. Attachment to be issued on affidavit, § 866. Attachment, to be served out of the county,, certificate to, § 868. Attachment, undertaking on, § 867. Attachments, form of and contents, § 868. Attachments, several writs may issue at same time, § 868. Attachments, to whom directed, § 868. ! JUSTICES' COURTS, IX, X, XI. IX. Process; subpoenas. All papers except subpoenas to be issued without blanks, § 920. Process,. by whom issued, § 91. Process, on whose order to issue, § 91. Process, over what territory reaches, §§ 93, 106. Process, returnable to whom, § 89. Process, service of, by sheriff and deputy, § 87. Process may issue to any part of county, § 919. Process upon docket of predecessor, § 916. Subpoena, clerk may issue, § 87. Subpoena may issue to any part of county, § 919. Subpoenas, issuance and service of, § 87. Summons: See ante, VII. X. Dockets; records; minutes. Docket, a public record, §§ 93, 914. Docket, clerk to keep and what to contain, § 93. Docket, deposited where on vacancy and before suc- cessor appointed, § 915. Docket, entries in time of making, § 912. Docket, entries in, force and effect of, § 93. Docket, entries prima facie evidence, § 912. Docket, how kept, § 93. Docket, index to docket must be kept, § 913. Docket, index to, how kept, § 913. Docket, to contain what, §§ 911, 913. Docket must be delivered to successor or county clerk, § 914. Docket of predecessor, process or execution on, § 916. Filing papers and pleadings, § 89. Minutes of proceedings, justice shall take and certify to clerk, § 93. Papers to be kept as public records, § 914. Record of proceedings kept in clerk's office, § 89. Transcript of entries in docket prima facie evidence, § 912. XI. Compromise; dismissal. Compromise, effect of accepting offer to, § 895. Compromise, effect of refusing offer to, § 895. Dismissal of action without prejudice, § 890. Dismissal, actions may be dismissed when, § 890. Dismissal, voluntary, § 890. JUSTICES' COURTS, XII, XIII. as'j XII. Place of trial. Changing, affidavits, § 833. Changing, because of interest, § 90. Changing, can be changed but once, § 834. Changing, for disqualification, § 833. Changing, grounds for, § 833. Changing, notice of trial, § 836. Changing, proceedings after, § 836. Changing, to what court cause may be transferred, § 835. Changing, transmitting papers, § 836. Claim and delivery, where to be brought, § 832. Generally, § 832. In v/hat township or city, § 832. Nonresident, action against, to be commenced where, § 832. Replevin, action in, to be commenced where, § 832. Township or city, action may be commenced in what, § 832. Transfer of proceedings, § 90. Transfer to superior court, in what cases required, § 838. Transfer to superior court, proceedings on, § 838. XIII. Continuance. Continuance, admission of evidence, effect of, § 876. Continuance, affidavit and showing necessary, § 876. Continuance, depositions of witnesses present, § 876. Continuance, grounds of, § 876. Continuance, length of, § 876. Continuance, length of where granted on court's own motion, § 874. Continuance for more than ten days unless upon un- dertaking not granted, § 877. Continuance, where defendant under arrest, § 876. Deposition of witness, on postponement of trial, § 876. Trial, adjournment, § 873. Trial, court may postpone of own motion, when, § 874. Trial, postponement by consent of parties, § 875. Trial, postponement by court of own motion, grounds for, § 874. Trial, postponement, deposition of witness, § 876. Trial, postponement for amendment of pleadings, § 874. Trial, postponement for want of testimony, § 876. ) JUSTICES' COl'RTS, XIII. XIV. XV. Trial, postponement for want of testiraony. affidavit as to evidence, § 876. Trial, postponement for want of testimony, when de- nied, § 876. Trial, postponenient upon application of arrested party, undertaking, § 876. Trial, postponement upon application of party, grounds for, § 876. Trial, postponement upon application of party, how obtained. § 876. Trial, postponement upon application of party under arrest. § 876. Trial, postponement when jury demanded. § 874. XIV. Trial; practice; rules; issues. Evidence not admissible, upon what questions. § 838. Hearing, date of to be entered in docket. § 850. Hearing, fixing day of, § S50. Hearing, notice of to be given. § 850. Hearing, notice of. form oi, § 850. Hearing, notice of, date of mailing to be entered In docket. § 850. Hearing, notice of, service of, § 850. Hearing, notice of, returning and filing, § 850. Issues classified, § 878. Issues defined, § 878. Issues, how arise. § 878. Issue of fact, how raised. § 880. Issue of law. how raised, § 879. Issue of fact by jury, unless waived, § 882. Issue of law triable by court, § 880. Notice of trial, form and service, § 850. Notice of trial, return and entry of, § 850. One hour in which to appear after time fixed In notice, § 850. Practice and rules, §§ 93, 95. Practice and rules, limitation on, § 95. Rules, when to go into effect, § 95. Trial may proceed when party fails to appear, § 8>14. Trial must commence within hour, § 873. Trial, notice of. form and service thereof, § 850. Trial, notice of. when change of venue. § 836. Trial, time when must be commenced, § 873. XV. Appearance; appearance by guardian. Appearance, failure of, trial may proceed on, § 884. JUBTICE.S' COI'ltTK, XV, XVI, XVII Kl Appearance, hour for, § 850. Appf;ar;inf;f;, fixing time for trial, { 850. Appearaijf;e, parti<;fi entitled Ut one lioiir for. 5 850. App«-aranee of defendant, lime for, § 845. Appearance, voluntary, place of trial, § 832. Guardian ad litem, how appointed for defendant, 5 843. Guardian ad litem, how appointed for plaintiff, 5 843. Guardian may ajipear for Infant or lunatic, § 843. Infant, may, appear by g'lardian, g 81.'{. Insane person may appear by guardian, § 843. Parties may appear in per8<^>n or by attorney, S 842. XVI. Jury. lK)ck be drawn from box, § 250. Names trj be written on slips, and foldf-d and placed In box, 5 250. ProceediuKS in forminc, { 250. Summoning of, officer's return, § 232. Waived by consent. § 883. Waived by failure to appear, § 883. Waived by failure to demand, § 883, Waived, how, § 883. XVil. Contempt. Conviction must be entered in docket, 5 910. Disobedience to order or process, § 906. Disorderly conduct, § 90C. Pine or Imprisonment for, § 909. In presence of justice, proceedings for, § 907. In presence of justice, punished summarily, § 907. In what cases justice may punish for, § 906. Not in presence of justice, proceedings for, § 908. Punishment for, § 909. R<^;8cuing person or property, § 906. Code f'lvll Prfx;.— «1 M2 JUSTICES* COURTS, XVII, XVIU, XIX, XX. What acts are, § 906. Witnesses, disobedience by, § 906. XVIII. Particular actions in. Account, action on, exhibition and inspection of, § 886. Account, action on, furnishing copy, § 886. Bill of particulars, § 454. Claim and delivery in, code sections applicable, § 870. Genuineness of instrument sued on, admitted, when, § 887. Joint obligation, action on, service outside of county, § 848. Mandamus, cannot issue, § 1085. Replevin, § 870. Written instruments, action on, exhibition and inspec- tion, § 886. Written instruments, action on, furnishing copy, § 886. XIX. Verdict Docket must contain, § 911. Judgment on, to be entered at once, § 891. XX. Judgments. Abstract, filing in county of defendant's residence, § 905. Abstract of judgment, filing and docketing in superior court, § 898. Abstract of judgment, form of, § 897. Abstract of judgment must be recorded to create lien on lands, § 900. By default, amount of, § 871. By default, proceedings on, § 871. By default, relief from, time to apply, § 859. By default, relief for mistake, surprise, neglect, § 859. By default, relief from, affidavit, § 859. By default, when defendant fails to answer amended complaint, § 872. By default, when demurrer to answer sustained, § 872. By default, when demurrer to complaint overruled, § 872. By default, when rendered, § 871. Confession of judgment, §§ 112, 1135. Confession of judgment, costs, § 1135. Confession of judgment, statement of defendant, filing § 1135. JUSTICES' COURTS. XX, XXI, XXII. !Ki Confession of, may be entered in any court, § 889. Docket must contain, § 911. Docketing in superior court, effect of, § 899. Entry of, when defendant subject to arrest, § 893. How proved in another state, §§ 1921, 1922. Lien of judgment on lands, § 900. Lien of, extends how long, § 900. Lien on lands, not unless abstract of recorded, § 900. Must be entered, at close of trial, § 892. Of dismissal, when action in wrong jurisdiction, § 890. Of dismissal without prejudice, in what cases entered, § 890. Remitting amount in excess of jurisdiction, § 894. Upon verdict, to be entered at once, § 891. XXI. Executions. Alias, § 903. Blanks must be filled, § 920. Contents of, § 902. Docket must contain statements relating to, § 911. Docketing judgment in superior court, execution, § 899. Duty of ofiicer receiving. § 904. In another county, § 90.5. May issue within five years, § 901. New county, justice may issue execution on docket of predecessor, § 916. On judgment docketed in superior court, § 899. Proceedings supplementary to, § 905. Renewal of, § 903. Supplementary proceedings. §§ 714-721. Time to issue, § 901. To be issued without blanks, § 920. To contain statement of what, § 902. To whom directed, § 902. Upon docket of preceding justice, § 916. Who may issue, § 901. XXII. Costs; fees; undertakings. Costs, in case compromise offered before trial, § 895. Costs, prevailing party entitled to, § 924. Costs, security may be required for, § 923. Costs included in judgment, § 896. Deposit instead of undertaking, § 926. Fees, collection and report of, § 103. Fees, inability to pay, § 91. 061 JUSTICES' C»UHTS, XXIIl— LANDLORD AND TENANT. Fees, judgment not to be rendered until paid, § 91. Fees, payment in advance, § 91. Fees, payment in advance, wlien excused, § 91. Fees for issuance and service of process, § 91. Secuo-ity for costs, justice may require, § 923. Undertaking, deposit in lieu of, § 926. XXIM. Appeals. Certificates, transcripts and other papers, § 92. Docket to contain what, § 911. Hov,^ taken, § 92. Notice, filing of, § 92. Papers to be filed, § 92. Statements, who to settle, § 92. Superior court, from matter taken to, time for, § 939. Superior court, proceedings brought into, appealability, § 963. Sureties, justication of, § 92. To superior court, §§ 974-980. To supreme court, § 964. Transcripts in cases certified to superior court, §§ 92, 838. JUSTICES OF SUPREME COURT: See Supreme Court Justices. JUSTIFICATION OF SURETY: See Surety. JUVENILE OFFENDERS, probationary treatment of ju- venile offenders, § 131. Probation oflicer, appointment of, § 131. Probation oflicer, powers and duties of, § 131. Probation officer, receives no compensation, § 131. See Probation Oflicers. KNOVi/LEDGE OF THE COURT: See Judicial NcUce. LABORERS, liens of, § 1183. See Liens. LAKE, boundary, § 2077. Venue of action for offense on lake situated in several counties, § 393. LANDLORD AND TENANT, adverse possession between, § 326. L.ANDLORD AND TENANT— LAW. 96S Assigning or subletting, effect of, § 1161. Breach of covenants by tenant, other interested parties may perform, § 1161. Forcible entry, § 1159. See Forcible Entry and De- tainer. Forfeiture of lease, § 1161. Forfeiture of lease, proceedings for relief against, § 1179. Forfeiture of lease, who may apply for relief against, § 1179. Holding- over, § llGl. Holding over of agricultural lamls, effect of, § 1161. Joinder of landlord as party defendant, § 379. Lease of estate of decedent, §§ 1577, 1579. Lease not exceeding a year, -writing not necessary, § 1971. Leasing agreement for longer than a year, § 1973. Notice to tenant of breach of covenants, and service thereof, §§ 1161, 1162. Notice to tenant that rent is due. and ser-vice thereof, § 1161, 1162. Presumption as to tenant's possession, § 326. Receipt for payment of rent as evidence, § 1963. Rents: See Rents. Subletting terminates tenancy, § 1161. Subtenant may perform conditions and ccrvenants, § 1161. Subtenant, rights of landlord against, § 1161. Tenancy at "will to be terminate-d by notice, § 1161. Tenant cannot deny title of landlord, § 1962. Tenant holding over, rights of, § 1161. Unlawful detainer, who guilty of, § 1161. Unlawful detainer, who not guilty of, § 1161. Unlawful detainer by subtenant, § 1161. Unlawful detainer, § IIGO. See Forcible Entry and De- tainer. Waste, committing, terminates lease, § 1161. Waste, rights where tenant commits, § 1161. LANGUAGE, instrument in foreign, expert may testify, § 1863. LARCENY, petit, justice has jurisdiction of, S 115. LAW: See Code; Statutes. Binding on all tribunals, § 2103. Books (x>ntaining, admissible in evidence, § 1900. 966 L.AW— L.li:<;iSL,ATUKE. Conclusions of, erroneous, vacation of judgment, § 663. Conclusions of: See Conclusions of Law; Findings. Constitution antl statutes, § 1897. Foreign, how proved, § 1901. Foreign law. or laws of sister state, how proved, § 1902. How authenticated, § 1901. Issues of, §§ 588-594. See Issues. Issues of, by whom tried, § 592. Issue of, to be first disposed of, § 592. Oral evidence of foreign laws, § 1902. Organic law, defined, § 1897. Public and private statutes defined, § 1898. Questions of, for court, § 2102. Questions of, what are, § 2102. Recitals in statutes, how far evidence, § 1903. Sister state, of. how proved, §§ 1900-1902. Statutes, what are, § 1897. Unwritten, 'defined, § 1899. Unwritten, of another state or county, how proven, § 1902. Written and unwritten, § 1895. Written law defined, § 1896. Written, where contained, § 1897. LAW BOOK, presumed correct, § 1900. LEASE: See Landlord and Tenant; Rents. A'greement for longer than a year, § 1973. Decedent's estate, of, §§ 1577, 1579. Term not exceeding a year, writing not necessary, § 1971. LEASEHOLD, when subject to redemption after sale on execution, § 700. Execution, sale on, of lease of less than two years, absolute, § 700. LEGACY: See Wills, III. Contribution among legatees, § 1564. Liability for debts, § 1563. Need not be paid until court orders, § 1646. Order for payment of, § 1651. Petition for, in giving bond, § 1658. Probate of will, legatee may petition for, § 1299. Specific, how far exempt from liability for debts, § 1563. LEGISLATURE. Continuance because of attendance of party, witness or attorney on legislature, § 595. Extension of time during attendance, § 1054. LEGISLATURE— LIEN. "«' Impeachment, §§ 36-39. See Impeachment Proceedings of, how proved, § 1918. LEGITIMACY, presumption of, §§ 1962, 1963. LETTER OF ATTORNEY: See Power of Attorney. LETTERS. If letter admitted, answer admissible, § 1854. Presumption that letters mailed were received, § 1963. LETTERS PATENT: See Patent. LIBEL, answer, § 461. Complaint, § 460. Justification, § 461. Limitation of action for, § 340. Mitigating circumstances, evidence of, § 461. Pleading In actions for, §§ 460, 461. Undertaking for costs in, p. 778, Stats. LIBRARY, exempt from execution, § 690. LICENSE, attorney's, §§ 277-281. Jurisdiction of justice's court of suits for collection of, § 103. LIEN: See Mechanics' Liens. Action to foreclose, on realty, where brought, § 392. Appeal lies from interlocutory judgment in action to redeem, § 963. Arising from acts done to prevent cruelty to animals, how enforced, § 1208. Arising from acts done to prevent cruelty to animals, sale and disposition of proceeds, § 1208. Attachment, ceases when Judgment stayed on appeal, § 671. Costs, when claim for wages disputed, § 1207. Death, judgment after, not a lien, § 669. Defendant's, in partition, pleading, § 758. Definition of, § 1180. Interlocutory judgment in action to redeem, time for, § 939. Judgment in another county, when transcript filed there, § 674. Judgment, when begins and when expires, § 671. Judgment after death, not to be a, § GG9. Justice's jud-gnient a lien on realty, when, § 900. Justice's court, action to enforce, in, § 113. Mechanic's, §§ 118,3-1203. See Mechanics' Liens. Priority of mechanic's, § 1186. m LIEN— LIMITATION OF ACTION. Realty, action to enforce lien against, to be brought in county where land is, § 78. Redemption from, procen'. »S Notice, when motion is to be made on errors of law, § C59. Notice, when motion is to be made on minutes of court, § 659. Order of, review of on appeal, § GC2. Passion or prejudice, for, § 662. Probate orders and decrees, provisions relating to new trials apply, §§ 1714, 1717. Procedure, when motion is to be made on affidavits, § C59. Procedure, when motion is to be made on bill of ex- ceptions, § G59. Procedure, where motion is made on statement of case, § 659. Procedure, where motion on ground of errors of law, § 659. Procedure, where motion on ground of insufficiency of evidence, § 659. Prohibilon, new trial in, § 1109. Review, new trial in, § 1109. Statement on appeal: See Statement. Statement settled after motion for, may be used on ap- peal, § 950. Verdict, chance, § 657. Verdict, pre-vention of, new trial in case of, § 616. Writs, what code sections apply to, § 1110. When may be granted, § 657. When verdict prevented, § 616. NONJUDICIAL DAY: See Holidays. NONRESIDENT, administrator, as, § 1369. Agent for, in distribution proceedings, §§ 1691-1695. Attachment of, § 537. Contempt, § 1015. Corporation, security for costs, §§ 1036, 1037. Costs, security for, § 1036. Default judgment against, § 585. Distribution of estate of, § 1667. Distribution to treasurer where distributee nonresi- dent, § 17031^. Estate of, probate jurisdiction over, § 1295. Guardians, §§ 1793-1799. See Guardian. Limitation, time to claim escheated estate, § 1272. Partition affecting, §§ 757, 762, 788, 7S9. Place of trial of action against, § 395. 986 NONRESIDENT— NOTICE. Pleadings of, by whom and how verified, § 446. Publication of summons, §§ 412, 413, 757. Service on. manner of, § 1015. Subpoenas, § 1015. Wards, §§ 1793-1799. Ward: See Guardians. NONSUIT, consent of party, on, § 581. Grounds for, § 581. Merits, in what cases judgments to be on, § 582. On failure of party to appear, § 581. On failure to prove case for jury, § 581. On plaintiff abandoning action, § 581. When may be entered, § 581. NOTARY, affidavit in another state, may take, § 2013. Affidavit, may take, § 2012. Deposition, may take, § 2031. Oaths, etc., may administer, § 2093. Seals, records and furniture exempt, § 690. NOTICE: See subject in question. Adverse party, to produce writing in evidence, § 1938. Appeal, of, § 940. Appeal to superior court, of, § 974. Appearance dispenses with proof of, § 1306. Attached property, of sale of, §§ 548, 550. Attached vessel, of sale of, § 824. Attorney, of change of, § 285. Attorney, substitution of, notice of, § 285. Bill of exceptions, in settling, § 650. Calendar, restoring causes to. on, § 593. Constructive, lis pendens, § 409. Construed according to ordinary acceptance of terms, § 1865. Contempt proceedings, to show cause, § 1212. Contribution, of claim for, § 709. Corporation, of dissolution of, § 1230. Corporation, dissolution of, notice of hearing, § 1232. Death or change of attorney, of, § 286. Death, notice of, giving to public administrator, § 1728. Decedent's estate, of postponing sale of, § 1558. Decedent's creditors, to, § 1490. Decedent's realty, of sale of, §§ 1547, 1549. Defective title, with, when valid, § 1046. Distribution proceedings, of, § 1664. ExecuLion sale, of, § 692. Execution sale, selling without notice, § COS. Execution sale, of, liability for defacing or taking down, § G93. Form of, § 1010. Hearing, notice of, § 594. Hearing, justice's court, § 850. Imprisonment, of application for discharge from, § 1144. Injunction, dissolution, notice of motion, § 532. Letters of administration, of application for, § 1373. Lienholders, to, to appear before referee iii partition, § 762. Lis pendens, § 409. Mail, service by, time for, § IOCS. Mandamus, of application for, § 1088. Mechanic's lien, to owner, of work done, § 1184. Motion, of, time for, § 1005. Must be given defendant of all proceedings, after ap- pearance, § 1014. Need not be given defendant of proceedings, if fails to appear, § 1014. Negotiable instrument, notice of dishonor, construc- tion of, § 1865. New trial, of intention to move for, § 659. Nonresident guardian, removal of property by, notice of, § 1798. Nonresidents, notices upon whom served, § 1015. Orders made without, how vacated or modified, § 937. Partition, of, § 755. Partition sale, of, § 775. Perpetuating testimony, notice, § 2084. Prisoner, application for discharge, notice of, § 1145. Probate, of petition for, § 1303. Recorded probate decree or order as, § 1706. Redemption from execution, of, § 703. Requisites, of, § 1010. Service of, §§ 1011-1017. See Service. Served, how, §§ 1010, 1011. Service of, time for, § 1005. Service, time for, extension of, § 1054. Sole trader, notice of application to become, § 1812. Surety, notice of entry of judgment against, § 1055. Tenant holding over, to, and service thereof, §§ 1161, 1162. 988 NOTICE— OATH. Title, want of, effect of, § 1046. Trial, of, § 594. Trial, of, when cause transferred to another justice 8 court, § 836. Writ of review, of application for, § 1069. Written, must be, § 1010. NUISANCE, abating, § 731. Action for, who may bring, § 73L Damages for, § 731. Defined, § 731. Enjoining, § 731. Jurisdiction of superior court, 8 76. Jurisdiction, supreme court, § 52. Public, city attorney may sue to abate, § 731. Public, city attorney, to abate when directed by sup- ervisors, § 731. Public, concurrent right of district attorney and city attorney to abate, § 781. Public, district attorney may sue to abate, § 731. Public, district attorney to abate when directed by supervisors, § 731. V/lio may sue for, § 731. NUMBER, singular or plural words in code, § 17. NUMBERS may be expressed by figures or numerals, § 18S. NUMERALS, use of, § 186. NUNCUPATIVE WILL: See Wills, V. In general, §§ 1344, 1345. OATH, affirmation, form of, § 2097. Affirmation in place of, § 2097. Appraiser's, §§ 1445, 1449. Arbitrator's, § 1285. Attorney's, § 278. Attorney acting as judge pro tempore, oath of, § 72. Commissioner or elisor's, to sell encumbered property, § 726. Corporation's, how taken, § 1348. Deputy justice's clerk, authority of, to administer, § &3. Executor or administrator's, § 1387. Form of, §§ 2094, 2095, 2096. Includes what, § 17. OATH— OFFICER. }ify Juror's, § 604. Justice's clerk's, § 86. Phonographic reporter's, § 272. Power of court to administer, § 128. Power of judicial officer to administer, § 177. Prisoner's, on his discharge, § 1148. Public administrator's, § 1727. Public administrator may administer, § 1742. Receiver's, § 567. Sole trader's, § 1818. Special administrator's, § 1414. Who may administer, § 2093. Witness', §§ 2094, 2097. Witness', affirmation in place of, § 2097. OBJECTIONS, waived if not taken by demurrer or answer, § 434. In practice, when taken by demurrer or answer, § 433. May be taken to dissolution of corporation, § 1231. To appointment of referee, how tried, § 642. To granting letters of administration, whei> filed, § 1351. OBLIGATION arises from contract or operation of law, § 26. Definition, § 26. OFFER TO COMPROMISE admits nothing, § 2078. Generally, § 997. In justice's court, § 895. Proceedings on, § 997. OFFICE. Appeal from judgment that one is usurping of- fice does not stay, § 949. Mandamus lies to compel admission to, § 1085. Repeal, by code, § 7. Tenure, how code affects, § 6. Usurpation of, §§ 802-810. See Usurpation of Office. "Vacancy, when election annulled, § 1127. Vacancy in office of supreme court, § 42. Vacancy in, of justice, supervisors to fill, § 111. Vacancy in office of superior judge, § 70. Vacancy in office of judge does not affect proceedings, § 184. OFFICER, arresting witness, liability of, § 2069. Assuming to be, a contempt, § 1209. 990 OFFICER— OFFICIAL REPORTER. Authority of majority, § 15. Bailiffs of supreme court, §§ 2G5, 266. Bond, need not give in action in official capacity, § 1058. Custodian of public wrilinj^ bound to give certified copies, § 1893. De facto, limitation of action against, § 341. Disobedience of process order or judgment, a contempt, § 1209. Entries, by, as evidence, §§ 1920, 1926. Exempt from jury duty, § 200. Impeachment, §§ 3G-o9. See Impeachment. Joint authority, majority may act, § 15. Judgment against, conclusive against sureties, when, § 1055. Judgment against, how enforced, § 710. Judicial, affidavits, etc., taking, § 179. Judicial, contempt, power in cases of, §§ 178, 1209. Judicial, controlling power of courts over, § 128. Judicial, exempt from juries, § 200. Judicial notice of public and private official acts, § 1875. Judicial powers, etc., of, § 176. Jiulicial, to have no partner practicing law, § 172. Limitation of action against, §§ 339, 341. Limitation of action against for escape of prisoner, § 340. Majority may act, § 15. Ministerial, §§ 128, 262. Misbehavior, when contempt, § 1209. Oaths, who authorized to administer, § 2093. Presumed regularly appointed, § 1963. Presumption of performance of official duty, § 1963. Probation. See Probation Officers. Replevin, not bound by affidavit of value in, when, § 473. Secretaries of supreme court, §§ 265, 266. Service of mandamus upon majority of board, effect of § 1096. Supreme court, of, §§ 262, 265, 266. Supreme court, of, traveling expenses, § 47. Usurpation of office, §§ 802-810. See Usurpation or Office. Venue of actions against, § 393. Verification of pleading, when officer a party § 446 Witness, as § 1881. OFFICIAL REPORTER: See Phonographic Reporter. OIL PIPE LINE, eminent domain. § 1238. OLOGRAPHIC WILLS, how proved, g 1309. OPINIONS of supreme court to be in writing, § 49. ORAL EXAMINATION defined, § 2005. ORDER: See Motion. Amend, power of court, to, § 128. Appeal lies from special orders after final judgment, § 9G3. Appeal from, time for, § 939. Arrest, §§ 478-504. See Arrest and Bail. Conclusiveness of, §§ 1909, 19G2. Condemnation, of, in eminent domain, § 1253. Deemed excepted to, § 647. Defined, §§ 1003, 1064. Disobedience of, a contempt, § 1209. Escheat proceedings, to appear in, § 1269, Former, evidence of, § 1962. Former, to be pleaded, when, § 1962. Inadvertence, relief from. § 473. Injunction, to show cause why should not issue, § 530. Inspection of writings, for, § 1000. Jurisdiction of justice's court over violation, § 103. Out of court and without notice, how vacated or modi- fied, § 937. Payment of money, for, enforced by execution, § 1007. Power of judges to grant and hear, at chambers, §§ 165, 166. Power of judicial officers to compel obedience to, § 177. Probate court, form of, in general, § 1704. Quo warranto, for arrest of defendant in, § 804. Removal of attorney for disobeying, § 287. Repeated application, when a contempt, § 183. Repeated application for, prohibited, §§ 182, 183, Reviewed, how, § 936. Revocation of order refused by another judge, § 183, Special proceedings, in, § 1064. Surprise, relief from, § 473. Survey, for, §§ 742, 743. Special proceeding, in, defined, g 1064. Survey of land, order for in ejectment, §§ 742, 743, Telegraph, service by, § 1017. Transfer of order to show cause, § 1006, Where may be made, § 1004. 992 ORDINANCE— PARTIES. ORDINANCE, how pleaded in police court, § 929. Jurisdiction of justice of peace, § 103. Violation of, trial when by court and when by jury, § 932. OWELTY of partition, § 1681. PAPERS, lost, how supplied, § 1045. Service of, §§ 1011-1017. See Service. To be furnished by appellant on appeal, § 950. What may be taken by jury on retiring, § 612. With defective title, when valid, § 1046. PARENT AND CHILD, parent may sue for death of minor, § 376. Parent may sue whom for death or injury of minor, § 376. Seduction of daughter, parent may sue for, § 375. PAROL EVIDENCE, to vary writing inadmissible, § 1856. To explain latent ambiguity, § 1856. When admissible to explain v/riting, § 1856. PARTICULARS, bill of, §§ 454, 853. PARTIES, abate, transfer of interest does not cause action to, § 385. Abatement by death, etc., § 385. Absence of, order made during, deemed excepted to, § 647. Absence of, postponement of trial for, § 595. Action to be in name of party in interest, § 367. Adding, §§ 389, 473. Additional, how brought in, § 389. Administrator, as, §§ 3G9. 1586. Administrator or executor may sue without joining beneficiary, § 369. Adverse claim, action to determine, §§ 380, 381, 738. Amended and supplemental pleadings to bring in neces- sary, § 389. Amendment changing, § 473. Application to be made party by interested person, § 289. As witness, § 1879. Assignment of chose not to prejudice defense, § 368. Associates may be sued by name of association, § 388. Beneficiaries need not be joinded when, § 369. Character good, admissibility of evidence of, § Ji(i53. PARTIES. ass Claimants under common source of title may unite, § 381. Cloud on title, suit to remove, § 381. Contempt by, § 1209. Coparceners, §§ 381, 384. Cotenants, §§ 381, 384. Cotenants may sue or defend jointly or severally, § 384. Cotenants, part may sue or defend for all, §§ 381, 384. Court may order in other, when, § 389. Death of, when not to abate action, § 385. Death or disability of party, effect of, § 385. Defect of, demurrer for, § 430. Defendant, definition of, §§ 308, 10G3. Defendant, substitution for, § 386. Defendants, those united In interest to be joined as, § 382. Definition of plaintiff and defendant, §§ 308, IOCS. Defendants, who may be joined as, § 379. Defendant in action against vessel, § 814. Defendant in action to determine adverse claims to realty, § 380. Defense by one, for benefit of all, § 382. Designated as plaintiff and defendant, § 308. Designated how, in special proceeding, § 10G3, Disability of, when not to abate action, § 384. Distribution of decedent's estate, in, § 1664. Ejectment, in, summons to unknown, §§ 700, 751. Eminent domain. In, §§ 1244, 1246. Escheat proceedings, in, § 1271. Estopped, who are, §§ 1908, 1910. Executors as, § 369. Executors, what, need not be made, § 1587. Fictitious name, when party may be sued by, § 474. Foreclosure, to, who need not be made, § 726. Forcible entry and detainer, in, §§ 1164, 1165. Guardian ad litem, how appointed, § 373. Heirs may sue for wrongful death, § 377. Husband and wife, §§ 370, 371. Incompetent, to appear by guardian, § 372. Infant, to appear by guardian, § 372. Insane, to appear by guardian, § 372. Insurers in separate policies may be joined. § 383. Interest in, when to join, § 382. Interpleader, when and how maintained, § 386. Intervention, how and when effected, § 387. Intervention, who may intervene, § 387. Code Civil Proc— «3 »M Joinder of, In suits respecting negotiable instruments, § 383. Joinder of those in interest, § 382. Joinder of those severally liable upon same obligation, § 383. Joinder, sureties, § 383. Joint contracts: See Joint Contracts. Joint debtors, after judgment, § 989. Joint tenants, §§ 381, 384. Judge or justice who is, disqualified, § 170. Judgment against one, action to proceed against others, § 579. Judgment may be for or against one or more of the, § 578. Justice's court, in, appear in person, or by attorney, § 842. Landlord, joinder of, as defendant, § 379. Legislature, extension of time during attendance on, § 1054. Married woman as party, husband when to be joined, § 370. Married woman may defend suit against herself and husband. § 371. Misjoinder, demurrer for, § 430. Negotiable instruments, joinder in suit on, § 383. New, bringing in, § 389. Nonjoinder, demurrer for, § 430. Nonsuit, § 581. One may sue or defend for all when, § 382. Other, court may order in, § 389. Parent may sue for injury or death of child, § 376. Parent may sue for seduction of daughter. § 375. Parent may sue whom for death or injury of child, § 376. Partition, in: See Partition. Plaintiff, definition of, §§ 308, 1063. Plaintiffs, those united In interest to be joined as, § 382. Plaintiffs, who may be joined as, § 378. Production of books and papers, § 1000. Quieting title, In, § 738. Quo warranto, in, §§ 803, 808. Real party in interest to sue, § 3G7. Record of court, parties cannot contradict, § 1837. Representative, substitution of, § 385. Representative may sue for wrongful death, § 377. Same, when deemed, § 1910. PARTIES-PAKTITION. tBi Service on, manner of, §§ 1010, 1011. Special proceedings, in, § 1063. Striking out, § 473. Substitution of, §§ 385, 386. Substitution of successors in Interest, § 385. Substitution, wliere party interpleads, § 387. Suit by one, for benefit of all, § 382. Sureties, joinder of, in suit on obligation, S 383. Tenants in common, §§ 381, 384. Tenants in severalty, § 381. Transfer of action does not abate it, § 385. Transfer of interest, action does not abate, S 385. Trust, suit to establisli, § 381. Trustee may sue without beneficiary, § 369. Trustee of express trust, who is, § 369. Trustee of express trust may sue without Joining beneficiary, § 369. Unknown, fictitious name, § 474. Unknown, in suit to quiet title, summons to, §§ 750, 751. Unmarried female may recover for own seduction, § 374. Vessel, defendant in action against § 814. When one or more may sue or defend for all, S 382. PARTITION. Abstract of title, § 799. Abstract of title, by whom made, § 800. Abstract of title, correction of, § 800. Abstract of title, custody of, § 799. Abstract of title, expense of, § 799. Abstract of title, how verified, § 800. Abstract of title, keeping for inspection, § 799. Abstract of title, notice of making, § 799. Abstract of titli, notice that open for inspection, S 799. Abstract of title, plaintiff may procure, § 799. Action for, who may bring, § 752. Action, where brought, § 392. Allotting and locating shares of each, § 764. Allowance for action brought or defended by one, § 798. Allowance of expenses paid by one tenant, § 798. Answer In, what to contain, § 758. Appeal from order respecting, time for, § 939. Appeal lies from what orders respecting, § 963. Arbitration In case of, § 1281. Attorney, appointment of, to represent party, S 763. Attorneys' fees, costs Include, § 796. City Included in property, proceedings in case of, § 768. «S6 PARTITION. Compensation, when unequal partition ordered, § 792. Compensation of tenant whose estate has been sold, § 778. Compensation of tenant whose estate sold, court may fix, § 779. Compensatory adjustment, § 792. Complaint in case of unknown party or interest, 9 753. Complaint must set forth interests of parties, § 753. Complaint must set forth what facts, § 753. Complaint, where interest is unknown or contingent, § 753. Contingent interest, partition of, § 781. Conveyance must be recorded in county, § 787. Conveyance will bar whom, § 787. Costs of, a lien on shares of parceners, § 796. Costs of, application of proceeds of sale to, § 771. Costs include attorneys' fees, § 796. Costs, judgment for, how enforced, § 796. Costs, lien on undivided share, subject to, § 769. Costs of proceedings, apportionment of, § 768. Costs of, when restricted to certain parties, § 796. Costs of previous litigation, incurred by one tenant, § 798. Counsel fees, incurred by one tenant, § 798. Counsel fees a lien on shares, § 796. Death of party, effect on the judgment, § 766. Death or disability pending,. proceedings on, § 763. Decedent's estate, of, §§ 1675-1686. Decedent's estate, of, on partial distribution, § 1661. Disbursements, interest on, § 801. Division of property must be made how, § 764. Estate for life, when may be set off in property not sold, § 770. Estate for life or years, unknown tenant of, protection of, § 780. Estate for years, when may be set off in property not sold, § 770. Executor, possession of, for purpose of, § 1581. Expenses of. how apportioned, §§ 768, 769. Expenses paid by one tenant, allowance of, § 798. Fees, apportionment of, § 768. Future interests, court must ascertain and secure. § 781. Future interests, how protected, § 781, Guardian, assent of, authority of court, necessity of, and how obtained, § 1772. PARTITION. W7 Guardian, authority of on partition of ward's interest, § 1772. Guardian may consent to and execute releases, §§ 795, 1772. Guardian may receive proceeds of, §§ 793, 794. Guardian receiving proceeds, must give undertaking, § 794. Improvements, apportionment of, § 7G4. Improvements, appraisement of, § 763. Improvements, in partition of site of town or city, § 763. Incumbered property, application of proceeds, § 771. Infant's share may be paid guardian, § 793. Insanity of person pen-ding, proceedings on, § 763. Interest on disbursements, § 801. Judgment in, binds whom, § 766. Judgment in, effect of death of party, § 766. Judgment in, not to affect what tenants for years, § 767. Lien, appointment of referee to inquire into, § 761. Lien of defendant, answer must set forth, § 758. Lien on undivided interest a charge only on share as- signed such party, § 769. Lien on undivided share subject to costs, § 769. Lien, proceeds of sale to be applied to discharge of, § 771. Lienholder holding other securities to first exhaust them, § 772. Lieriholders must be made parties, or referee appointed to determine rights, § 761. Lienholders not of record need not be made parties, § 754. Lienholders, notice to appear before referee, § 762. Lienholders, notice to appear, how served, § 762. Lis pendens, plaintiff to record notice of, § 755. Lunatic's estate, §§ 794, 1772. Lunatic, guardian may consent to partition and exe- cute releases, § 795. Must be according to rights of parties as determined by court, § 764. Nonresidents claiming lien, notice to appear, how, served, § 762. Nonresident, service on by publication, § 757. Notice of, § 755. Owelty, § 1681. Partial, proceedings in, § 760. Partial, when to be ordered, § 760. PARTITION. Parties, death or disability of, pending the action, prro- ceedings on, § 7C3. Parties, lienholders must be made, § 761. Parties, nonresident, service by publication, § 757, Parties, ordering in lienholders, § 7C1. Parties, purchasers and lienholders not of record need not be made, § 754. Parties, rights of all, may be ascertained, § 759. Parties, unknown, rights of, may be considered to- gether, § 759. Parties, unknown owners, rights of to be considered, § 759. Parties, unknown, service by publication, § 757. Proceeds, distribution of, § 773. Proceeds belonging to unknown or absent party, duty of county clerk in investing, § -791. Proceeds belonging to unknown or absent party invest- ed in county clerk's name, § 789. Proceeds, belonging to unknown parties or nonresi- dents must be invested, § 788. Proceeds, deposit in court, § 773. Proceeds, distribution of, party holding other securi- ties may be compelled to exhaust, § 772. Proceeds, guardian of infant or lunatic may receive, §§ 793, 794. Proceeds, how disposed of to protect future interests, § 781. Proceeds, order confirming sale may direct disposition of, § 785. Proceeds, payment into court, § 773. Proceeds, payment into cooirt, continuing cause to de- termine claims, § 774. Proceeds of unencumbered property, application of, § 771. Proceeds, nonresidents or unknown owners of, dispo- sition, § 788. Proceeds, order directing investment of share of in- fant, lunatic or nonresident, § 776. Proceeds, taking testimony to determine rights, § 774, Proceedings, when lienholder purchases, § 786. Referee, new. court may appoint, § 766. Referees, number of, § 763. Referee, single, powers of, § 797. Referees, single referee may be appointed by consent, § 797. Referees, when appointed to make, § 763. PARTITION. 999 Referees, city or town site, duty in partitioning, § 763. Referee, to determine ri-ghts of lienholders. § 761. Referee to determine rights of lienholder, notice to appear before, § 762. Referee, to determine rights of lienholders, notice to appear before, service on absentees, § 762. Referee, to determine rights of lienholders, report of, § 762. Report of referees, court may aflarm, modify, or set aside, §§ 763, 766. Report of referees to contain what, §§ 765, 784. Rights of all parties may be determined, § 7^9. Road or street, setting forth portion for, §§ 763, 764. Road or street, setting forth portion for, effect on exist- ing roads and streets, § 764. Sale, after confirmation of, conveyance to be executed, § 785. Sale, agreement as to shares, filing of, § 790. Sale Sale Sale Sale Sale Sale Sale Sale Sale Sale Sale Sale Sale Sale Sale Sale Sale Sale Sale Sale Bale Sale Sale before ordering, title to be ascertained, § 759. cotenant purchasing, receipt for claim, § 786. credit, court must direct terms of, § 776. encumhered property, application of proceeds, § 771. guardian of infant party may not be interested in, § 783. guardian of infant or lunatic may receive pro- ceeds, §§ 793, 794. lienholder purchasing, receipt for claim, § 786. lots to be sold separately, § 782. notice of and its requisites, § 775. order confirming to direct disposition of pro- ceeds, § 785. order to direct investment of proceeds, § 776. order to direct terms of, § 776. proceedings when lienholder purchases, § 786. purchasers, who may not be, § 783. report of, filing, § 784. report of, referees must make, § 784. report of, requisites of, § 784. rights of unknown parties to be ascertained, § 759. securities for purchase money, in whose name to be taken. §§ 777, 789. securities for purchase money, infants, § 777. securities for purchase money, referees may take, § 777. securities, receipt for to be filed, § 790. terms of, to be made known at time, § 782. MOO PARTITION— PARTNERSHIP. Sale to be at auction, § 775. Sale, when may be ordered, § 763. Sale, who may not purchase, § 7S3. Sale of site of town or city, improvements, right of cotenant to purchase. § 763. Sale of site of town or city, when ordered, § 763. Sale of specific tract by tenant in common, how such land allotted, § 764. Sale, securities, receipt for, § 790. Sale, securities must be taken in name of parties, § 790. Sale, securities taken by referee, distribution of, § 773. Specific tract, of, conveyed by one tenant, § 764. Summons, service by publication, § 757. Summons must be directed to whom. § 756. Snrveyor, fees of, apportionment of, § 768. Surveyor may be employed, § 764. Tenants for years, when not affected by, § 767. Townsite. proceedings on partition of, § 763. Unequal, compensation adjudged in, § 792. Unknown tenants, court must protect, § 780. Unknown owners or interest, protection of rights of, § 763. Vested future interests, to be protected, § 781. Ward's estate, of, § 1772. When property includes city or town, proceedings, § 763. Where action for, must be brought, § 392. Who may maintain, § 752. PARTNERSHIP, administrator, partner as, § 1365. Declarations of partner, § 1870. Executor's sale of firm interest, § 1524. Judicial officer not to have partner practicing law, § 172. Juror, partner as, § 602. Petition for sale of mine by, § 1530. Presumption of, § 1963. Presumption in favor of contract of, § 1963, Receiver for, § 564. Referee, partner cannot be, § 641. Suit, firm name, § 388. Surviving partner to settle up business, § 1585. Surviving partner, compelling accounting by, § 1585. . Surviving partner, duty to account, § 1585. PARENT— PERFORMANCE. leui PATENT, limitation of actions by patentee of state, §§ 316, 317. Prima facie evidence of date of location stated, § 1927. PAYMENT, one entitled to receipt on, § 2075. Presumption of from possession of order, § 1963. Presumption that money paid was due, § 19C3. Presumption that obligation delivered up has been paid, § 1963. Tender, objection to, must be specified, § 2076. Tender, offer in writing to pay equivalent to, § 2074. PEDIGREE. Common reputation, evidence of, when ad- missible, § 1870. Declarations of decedent, evidence of, § 1852. Venue of action to recover, § 393. What admissible as evidence of, § 1870. PENALTY: See Fine. Arrest in action for, § 479. Arrest for, in justice's court, § 861. Contempt, for, § 1218. Defacing or taking down notice of execution sale, for, § 693. Embezzling decedent's estate, or disobejing citation to appear in the matter thereof, for, § 1460. Justice's court, action to recover in, § 112. Limitation of action on, §§ 338, 340. Limitation of action to recover, from stockholders and directors, § 359. Mandamus, for disobedience to, § 1097. Practicing law without license, for, § 281. Selling under execution without notice, for, § 693. Will, for nondelivery of, to probate court, § 1298. PENDENCY OF ACTION as ground of demurrer, § 430. Notice of, filing of, § 409. When action deemed pending, § 1049. PEOPLE, execution to be in name of, § 682. Security, do not give, §§ 529, 1058. See State. PERFORMANCE, of conditions precedent, how averred, § 457. Time of, of act, may be extended, § 1054. 1002 PERISHABLE PKOPEKTY— PIIONOGRArMIC REPORTKI1. PERISHABLE PROPERTY. Appeal from judgmcnL direct- ing sale does not stay, § 949. Attachment of, § 547. Attachment of, proceeds of sale of, §550. Notice of execution sale of, § G92. Sale by executor or administrator, § 1522. PERJURY, number of witnesses to prove, § 1844. Proof necessary, § 1968. PERPETUATING TESTIMONY, mode of, §§ 2083-2087. See Depositions. PERSON, definition of injury to, § 29. Includes corporation, § 17. Joinder of actions for injuries to, § 427. PERSONAL PROPERTY, attachment of, manner of, § 542. Includes what, § 17. Limitation of action for injury to, § 338. PESTILENCE as cause for removal of court, § 142. PETIT LARCENY, justice has jurisdiction of, § 115. PHONOGRAPHIC REPORTER, absent, clerk to take testi- mony, § 1051. Appointment and tenure of office, § 269. Attention to duties in person, § 271. Attention to duties in person, excuse from, § 271. Clerk to take down testimony where there is no, § 1051. Compensation of, § 274. Compensation of, how paid, § 274. Competency, certificate of, § 270. Competency, test of, § 270. Duties of, § 269. Fees of, § 274. Fees of, where one temporarily appointed, § 274. Number of, § 269. Oath of, § 272. Pro tempore, § 271. Pro tempore, oath of, § 272. Pro tempore, fees and compensation of, § 274. Pro tempore, report of, prima facie evidence, § 273. Qualifications of, and how tested, § 270. PHONOGRAPHIC REPORTER— PLACE OF TRIAL. 1003 Reference to report of, on heaving motion for new trial, § 660. Report of, prima facie evidence, § 273. Supreme court, for, provided for in Political Code, § 268. Transcript of notes, prima facie correct, § 273. PHOTOGRAPHY. Presenting photographic copy of will to nonresident witness, § 1308. PLACE OF TRIAL, absence or disability of justice, trans- fer of action, § 90. Actions brought in wrong county, action may be tried, § 396. Appeal from order on motion for change, time for, § 939. Appeal lies from order relating to change, § 963. Brought in wrong county, how defendant may demand change, § 396. Change of affidavit of prejudice and counter-affidavit, § 170. Change of affidavit of prejudice, proceedings on, § 170. Change of affidavit of prejudice, transfer of cause on, § 170. Change of, costs of, § 399. Change of, disqualification of judge where more than one judge in county, § 170. Change of, disqualification of judge or justice, § 398. Change of, grounds of, § 397. Change of, to what court transferred, § 398. Change of, transmission of papers, § 399. Change of, power of court to which transferred. §§ 399. 837. Change of, appeal from order does not stay, § 949. Change of, where justice prejudiced, § 90. Claim and delivery in justice's court, § 832. Condemnation proceedings, § 1243. County or city, action against, where brought, § 394. County or city, action by, transfer of, to another county, § 394. Defendant improperly joined, § 395. Defendant joined to have trial in his county, § 395. Foreclose mortgage or lien on realty, where brought, § 392. Forfeiture, action to recover, § 393. 1004 PLACE OF TRIAI^PLAINTIFT. Guardianship proceedings, change of, § 1760. Injunction, place of trial, where injunction demanded, § 392. Justice's court, place of trial: See Justice's Court, XII. Lien on realty, venue of action to foreclose, §§ 78, 392. May be changed when, § 397. May be tried in- any county, unless defendant objects, § 396. Mortgage, venue of action to foreclose lien, § 392. Motion may be transferred to another judge, when, § 1006. Offense committed on lake or stream in several coun- ties, § 393. OflBcer, action against, § 393. Order to show cause may be transferred to another judge, when, § 1006. Penalty, action to recover, § 393. Quieting title, action to be brought in county where land is, § 78. Real actions, § 392. Real, place of, when property lies in two counties, § 392. Realty, transfer of action to another county, proceed" ings after judgment, § 400. Transferred cases respecting realty, proceedings after judgment, § 400. Transfer to another court, manner of, §§ 398, 339. Transfer when judge disqualified, § 398. Transfer to another court, costs of, § 399. Transfer to another court, papers to be transmitted, § 399. Transitory actions, § 395. When defendant about to leave state, § 395. When defendant nonresident, § 395. When residence determines, § 395. When residence of defendant unknown, § 395, PHRASES, interpretation of: See Words and Phrases. PHYSICIAN as witness, §§ 1881, 1882. Exempt from jury duty, § 200. Property exempt from execution, § 690. PLAINTIFF: See Parties. Pleadings of, § 422. PLEA— PLEADING. !«» PLEA: See Answer. PLEADING: See Answer; Complaint; Counterclaim; De- murrer. Account, how to be stated, § 454. Action is commenced by filing complaint, § 405. Allegations not denied, when deemed controverted, § 462. Alleg"ations not denied, when deemed true, § 462. Amended, filing, § 4^2. Amended, service of, § 472. Amended, to bring in necessary parties, § 389. Amendment, time for, when demurrer sustained or overruled, § 476. Amendment, when variance, §§ 469, 470. Amendment changing parties, § 473. Amendment correcting mistake, § 473. Amendment, in justce court: See Justice's Court, V. Amendment of course, § 472. Amendment of course, filing and service of, § 472. Amendment, postponing trial in justice's court, § 874, Amendment without costs, § 470, Answer: See Answer. Bill of particulars, §§ 454, 853. Board, determination of, § 456. Complaint: See Complaint. Conditions precedent, § 457. Consolidation of actions, § 1048. Construction of, to be liberal, § 452. Cross-complaint, § 442. See Cross-complaint. Cross-demand, §§ 439, 440. See Cross-demand. Defects in, to be disregarded unless substantial rights affected, § 475. Defendant, pleadings of, § 422. Defined, § 420. Demurrer, §§ 430, 431. See Demurrer. Description of real property in, § 455. Enlarging time for, § 473. Error in, to be disregarded unless substantial rights affected, § 475. Escheat proceedings, in, § 1271. Extension of time respecting, § 1054. Facts, what to be pleaded, § 426. Fictitious name, when party may be sued by, § 474. Filing, § 465. Form of, prescribed by code, § 421. Form of action, but one, § 307. lOOe PLKADING. Genuineness of instrument, when not admitted, § 449. Heading defective, § 1046. Inspection of instrument, demand for, § 449. Instruments, genuineness of, how controverted, § 448. Instruments, genuineness of, when admitted, § 448. Irrelevant and redundant matter may be stricken out, § 453. Issue not made by, how tried, § 309. Items of account, § 454. Joined, what actions may be, § 427. Joint debtor, action against after judgment, §§ 989, 994. Judgment-roll, as part of, § 670. Judgments, §§ 456, 1962. Justice's court. In: See Justice's Court, V. Libel, answer In action for, § 461. Libel, complaint in action for, § 460. Limitation, statute of, § 458. Lost, how supplied, § 1045. Material allegation defined, § 463. Names of, § 422. Objections to, waiver, § 434. Ordinance In police court, § 929. Particulars, bill of, §§ 454, 853. Parties, §§ 367-380. See Parties. Plaintiff, pleadings of. § 422. Private statutes, § 459. Real property, §§ 455, 457. Rule by which sufflciency governed prescribed by code, § 421. Separately stated, causes of action to be, § 427. Separately stated, defenses must be, § 441. Service of, § 465. Sham answer may be stricken out, § 453. Slander, complaint In action for, § 460. Special Issues not made by pleadings, how tried, § 309. Statute, private, § 459. Statute of limitations, § 458. Striking out redundant and irrelevant matter, § 453. Striking out, order deemed excepted to, § 647. Subscription to, § 446. Supplemental, for revival of judgment, § 685. Supplemental, to bring in necessary parties, § 389. Supplemental, when allowed, § 464. Title, defective or want of, effect of, § 1046. Variance, amendment, §§ 469, 470. Variance, Immaterial, how provided for, § 470. PLEADING— POLICE COURT. 1«07 Variance, what is not but a failure of proof, § 471. Varip.uce, when malerial, § 4C9. Verification of, afTidavit, § 44G. Verification of, by attorney, § 440. Verification of, by officer of corporation, § 446. Verification of, by one other than party, § 446. Verification of, manner of, § 446. Verification, may be by affidavit, § 2009. Verification of, when necesiiary, § 446. What constitutes, in proceedings against joint debtor after jmlgment, § 993. "What pleadings are allowed, § 422. Written instruments, §§ 447-449. Written instrument in Justice's court, § 886. PLURAL includes singular, § 17. POLICE COURT, action in, commenced by filing complaint, § 929. Act transferring records and procee-dings to, p. 783, § 3, Stats. Answer may be oral or written, § 931. Answer, when may be made, § 931. Appeal to superior court, §§ 974-980. See Appeal. Attorney, license not necessary to practice as, in, § 281. Complaint, filing, § 929. Complaint to contain what, § 929. Complaint in, to be verified, § 929. Impaneling jury, manner of, §§ 250, 251. Jurors for, how summoned, §§ 230, 231. Mandamus, cannot issue, § 1085. Ordinance, how pleaded, § 929. Ordinance, violation of, how pleaded, § 929. Proceedings conducted as in justice's court, § 933. Provided for in Political Code, § 121. Record, police courts are not courts of, § 34. Seal. has. § 147. Seal, form of, § 150. Summons, time for issuing, § 930. Trial, adjournment, § 931. Trial, time for. § 931. Trial by court, in what cases will be had on violating ordinance, § 932. Trial by jury, when defendant entitled to on violating ordinance, § 932. 1009 POLICE JUDGE— PREFERENCE. POLICE JUDGE may take acknowledgment, affidavit, deposition, § 179. POLLING JURY, § 618. POSSESSION, adverse, §§ 318 et seq. See Adverse Pos- session. Issue of title, evidence of continued possession of re- mote occupant, § 1834. Parties defendant, who may be joined in action for, § 379. Presumption of ownership from, § 1963. Realty, action to recover, costs of course allowed when, § 1022. Writ of, of may have, § 380. Writ of: See Assistance. POSTPONEMENT, costs may be imposed, § 1029. Forcible entry, etc., § 1173. Mandamus, on, § 1090. Trial, §§ 595, 596. Trial, justice's court, §§ 873-876. Trial, commission, return of, § 2027. See Continuance; Justice's Court, XIII. POWER OF ATTORNEY to act as counsel In justice's court, § 96. PRACTICE: See Trial. Action, when commenced, § 350. Eminent domain, rules of practice governing, §§ 1256, 1262. Error disregarded unless substantial rights affected, § 475. Orders out of court without notice, how vacated or modified, § 937. Power of court where procedure not specifically pro- vided, § 187. Time, extension of, generally, § 1054. Vacancy in office of judge does not affect proceedings, § 184. PREFERENCE, claims for wages, §§ 1204-1207. Condemnation proceedings, preference of over other civil actions, § 1264. Debts against decedent's estate, §§ 1643-1645. PREFERENCE— PRESUMPTIONS. lOOS Election contests, preference of on appeal, § 57. F"mily allowance, preference of, § 1467. In making appointment of special axiministrators, § 1413. Probate appeals, preference given to, § 57. Wages a preferred claim against estate of decedent. § 1205. Where several persons equally entitled to admiuis ter, § 1366. Who entitled to, in appointment of guardian, § 1751. PRESENT includes future, § 17. PRESUMPTIONS. Ancient documents presumed genuine, § 1963. Binding on jury, § 1961. Books containing laws of foreign country or sister state presumed correct, § 1900. Conclusive, enumeration of, § 1962. Conclusive, estoppel in pais, § 1962. Conclusive, estoppel by acts in pais, § 1S62. Conclusive, estoppel by "standing by," § 1962. Conclusive, generally, § 19G2. Conclusive, guilty intent, when, § 1962. Conclusive judgment, §§ 1908, 1962. Conclusive, legitimacy, § 1962. Conclusive, malicious intent, when, § 1962. Conclusive, order of court, §§ 1908, 1962. Conclusive, presumption made conclusive by statute, § 1962. Conclusive, recital in written instrument, § iao/i. Conclusive, tenant cannot deny landlord's title, § 1962. Controvertible, § 1961. Definition of, § 1959. Disputable, §§ 1961, 1963. Disputable, acquiescence, presumption from, § 1963. Disputable, ancient writing, §§ 34, 1963. Disputable, arbitration, all matters passed upon, § 1963. Disputable, arbitrators passed on all matters sub- mitted, § 1963. Disputable, arising from order of court, § 1909. Disputable, books containing reports of cases, § 1963. Disputable, books printed by authority, § 1963. Disputable, burial ground, dedication of, § 1963. Disputable, books, contents of, correct, § 1963. Disputable, consequence of act intended, § 1963. Code ClvU Proc.— 64 1010 PRESUMPTIONS. Disputable, coiioidcratiou for bill or note, § 1963. Disputable, considoralion for indorsement, § 1963. Disputable, continuance of thins, § 1963. Disputable, consideration from writing, § 1963. Disputable, course of business, ordinary followed, § 1963. Disputable, course of nature, or habits of life, ordi- nary, § 19G3. Disputable, court acting within jurisdiction, § 1963. Disputable, date, correct, § 1963. Disputable, death after seven years, § 1963. Disputable, death, priority of, § 1963. Disputable, dedication of burial ground, § 19G3. Disputable, delivery, § 1963. Disputable, delivery from possession of order for de- livery, § 1963. Disputable, delivery imports ownership of deliverer, § 19G3. Disputable, fairness of private transactions, § 1963. Disputable, generally, § 1963. Disputable, higher evidence is adverse, if lower pro- duced, § 1963. Disputable, identity of person from identity of name, § 1963. Disputable, indorsement of bill or note, time of, § 1963. Disputable, indorsement, where made, § 1963. Disputable, innocence, § 19G3. Disputable issue, all matters in passed upon, § 19;i3. Disputable, judge acting within jurisdiction, § 1963. Disputable, jurisdiction that court or judge acts with- in, § 1963. Disputable, jury must find according to, § 1961. Disputable, law has been obeyed, § 1963. Disputable, legitimacy, § 1963. Disputable, letters mailed were received, § 1963. Disputable, marriage, § 1963. Disputable, may be rebutted by evidence, §§ 1961, 1963. Disputable, money paid to a person was due, § 1963. Disputable, nonconclusive judicial record correct § 1963. Disputable, obligation delivered up paid, § 1963. Disputable, officer regularly appointed, § 1963. Disputable, official duty performed, § 1963. Disputable, ordinary care tak^n of one's own concerns 6 1?63. PRESUMPTIONS-PRIMA PACIE EVIDENCE. Wll Disputable, ownership from acts of dominion or from reputation, § 1963. Disputable, ownership from common reputation, § 19fi3. Disputable, ownership from exercising acts of owner- ship, § 1963. Disputable, partnership, § 1963. Disputable, payment from possession of order for pay- ment, § 1963. Disputable, payment of earlier rent and installmenta on production of later receipt, § 1963. Disputable, possession imports ownership, § 1963. Disputable, rent, last receipt for, § 1963. Disputable, shorthand notes, § 273. Disputable, survivorship, § 1963. Disputable, suppressed evidence adverse, § 1963. Disputable, that one takes ordinary care of his con- cerns, § 1963. Disputable, trustee, bare, has conveyed to cestui, § 1963. Disputable, unlawful intent, § 1963. Disputable, witness presumed to speak truth, § 1847. Disputable, writing thirty years old, § 1963. Document over thirty years presumed genuine, § 1963. Error not presumed prejudicial, § 475. Foreign judgment, presumption arising from, § 1315. Marriage, presumption of, § 1963. May be controverted, when, § 1961. May be rebutted by evidence unless made conclusive. §§ 1961, 1963. Offlcer regularly appointed, § 19G3. ^ Partnership, presumption as to, § 1963. Possession, presumption of ownership. § 1963. Possession of realty, presumption as to, § 321. Refusal to produce books and papers, on, § 1000. Survivorship, presumptions respecting, § 1963. Tenant, possession of, presumption as to, § 326. Witness presumed to speak truth, § 1847. Words presumed used in ordinary acceptation, § 18(51. PRIEST, exempt from jury duty, § 200. Privileged communication, § 1881. PRIMARY EVIDENCE: See Evidence, II. PRIMA FACIE EVIDENCE: Gee Evidence, II. 1012 PRINCIPAL AND AGENT— PROBATE COURT. PRINCIPAL AND AGENT: See Agency. PRINTING included in writing, § 17. PRISONER, adverse possession against, § 328. Confined on civil process, discharged on what condi- tions, § 1143. Deposition of, §§ 1995-1997. Discharge of, by order of plaintiff, no second arrest, § 1153. Discharge of, denied, second application, § 1150. Discharge of, evidence, hearing of, § 1146. Discharge of, exempts from subsequent arrest, § 1151. Discharge of. final, § 1151. Discharge of, judgment remains in force, § 1152. Discharge of, notice of application for, § 1144. Discharge of, notice of application for, service of, § 1145. Discharge of, oath to be administered, § 1148. Discharge of, order of. § 1149. Discharge, examination for 1 efore judge, § 1146. Discharge, examination for, answers in writing may be required, § 1147. Escape, limitation of action for, § 340. imprisonment, effect on running of statute, § 328. Limitation of action in case of imprisonment, §§ 328, 352. riaintiff may order discharge of, § 1153. Support of, plaintiff to advance funds for, § 1154. Witness, as, §§ 1995-1997. Witness, order for production of, §§ 1995, 1996. PRIVATE STATUTE, defined, § 1898. Foreign law-books admissible in evidence, § 1900. How pleaded, § 459. Recitals in, how far evidence, § 1903. PRIVATE SITTINGS, in certain cases, § 125. PRIVATE WRITINGS: See Writings. PRIVILEGED COMMUNICATIONS, §§ 1880-1882. See Wit- nesses. PROBATE COURT: See Executor and Administrator; Es- tate of Decedent; Public Administrator. Appeals, § 1714. Appeals, preference given, § 57. Appeal from decree settling trustee's account after distribution, § 1701. PROBATE COURT— PROBATION OFFICERS, WU Chambers, power of court at, § 166. Citation, how directed. § 1707. Citation, how issued, § 1708. Citation, how served, § 1709. Citation, what to contain, § 1707, Citation by personal notice, § 1710. Citation to be served five days before return, § 1711, Costs, by whom to be paid, § 1720. Court to try case when no jury demanded, § 1717. Decrees of, need not recite jurisdiction, § 1704. Decrees of, to be entered in minutes, § 1704. Decrees of, to be recorded, § 1719. Decree, recorded, as notice, § 1706. Guardian, appearance by, § 1722. Guardian, appointment of: See Guardian, I. Guardian, service of notice upon, § 1722. Issues joined, how tried and disposed of, § 1716. Judgments of, entered and enforceable as other judg- ments are, § 1716. Jury trial where issues of fact joined, § 1717. New trial, §§ 1714, 1717. Notice, personal, to be by citation, § 1710. Notice, recorded, order or decree as, § 1706. Orders of, need not recite jurisdiclion, § 1704. Orders of, to be entered in minutes, § 1704. Order, recorded, as notice, § 1706. Personal notice to be by citation, § 1710. Power of, at chambers, § 160. Practice, rules of in general, § 1713. Practice of, sections of code governing, § 171S. Preferences given to appeals in probate, § .'^7. Public administrator, §§ 1726-1744. See Public Admin- istrator. Publication, how often to be made, § 1705. Recorded order of decree as notice, § 1706. Service on guardian, equivalent to service on ward, § 1722. Transfer of books, papers and actions to superior court § 79. Vacancy in trusteeship, filling, § 1702. Writs and process necessary may be issued at cham- bers, § 166. Wills, probate of: See Wills, VTI, X, XI. PROBATION OFFICERS, appointment, intention of act § 131, sub. 9. 1014 ruOBATIOX OFFICERf Conditions of probation, furnishing to child, § 131, sub. 11. Conditions of probation, violation of, proceedings on, § 131, sub. 10. Courts, in what courts to serve, § 131, sub. 12. Creation of office of, § 131, sub. 7. Deputies, creation of office of deputy, § 131, sub. 7. Deputies, number of, § 131, sub. 5. Deputies, appointment of, § 131, sub. 7. Deputies, appointment, intention of act, § 131, sub. 9. Deputies, additional, serve without salary, § 131, sub. 5. Deputies, additional, appointment and removal of, § 131, sub. 5. Deputies, allowance and payment of expenses, § 131, sub. 6. Deputies, duties and powers of, § 131, sub. 8. Deputies, powers of peace officers, have, § 131, sub. 13. Deputies, in what courts to serve, § 131, sub. 12. Deputies, removal of, § 131, sub. 7. Deputies, term of office of, § 131, sub. 7. Duties of, § 131, subs. 8. 10, 11. Examining into institutions. § 131, sub. 4. Expenses, allowance and payment of, § 131, sub. 6. Inquiry into antecedents of offender, duty, § 131, sub. 10. Number of, § 131, sub. 5. Office of, creation of, § 131, sub. 7. Peace officers, have powers of, § 131, sub. 13. Probation committee, appointment of, § 131, sub. 1. Probation committee, appointment of officei's and depu- ties, § 131, sub. 7. Probation committee, compensation, act without, § 131, sub. 3. Probation committtee, intention of act, § 131, sub. 9. Probation committee, institutions, examining into, § 131, sub. 4. Probation committee, institutions, report on, § 131, sub. 4. Probation committee, number of, § 131, sub. 1. Probation committee, oath and qualification, § 131, sub. 1. Probation committee, term of office, § 131, sub. 2. Probation committee, vacancies, how filled and term of appointee, § 131, sub. 2. Records, keeping and inspection of, § 131, sub. 10. Removal of, § 131. sub. 7. Report and recommendation on child, § 131, sub. 10. PROBATION OFFICERS— PROFITS. Hi'o Report of violation of terms of probation, § 131, sub. 11. Report on child released on probation, § 131, sub. 10. Term of office of, § 131, sub, 7. PROCESS: See Summons. Abbreviations, § 186. Abuse of, contempt, § 1209. Abuse or disobedience of, a contempt, § 1209. Amendment of, power of court, § 128. Chambers, power of judge at, to issue, §§ 165, 166. Contempt, for abuse of, § 1209. Defined, § 17. Discharge of persons imprisoned on civil process, §§ 1143-1154. Disobedience of, contempt, § 1209. EJxecution of, where new county formed, p. 780, Stats. Guardian, service on, as service on ward, § 1722. How far extends, § 78. Inter-ference with, contempt, § 1209. Joint debtors, to, after judgment, §§ 989-991. Justices court, issuance in, § 91. Justice's court, from, duty of sheriff and deputy to serve, § 87. Justice's court, in, payment of fees, § 91. Justice's court, may issue to any part of county, § 919. Justice's court, to be issued without blanks, § 920. Language to be used in, § 185. Mistalie, relief from, § 473. Mode of carrying jurisdiction into effect, § 187. Power of court to amend and control, § 128. Power of judges at chambers, to issue, §§ 165, 166. Return of, in justice's court, §§ 87, 89. Seal, want of, not to affect, when, p. 781, Stats. Service in case of nonresidents, § 1015. Service by telegraph, § 1017. Service on associates in business, § 388. Service on necessary parties ordered in by court, § 389. Service on guardian, § 1722. Service on persms transacting business under common name, § 388. Signifies what, § 17. Superior court, process of, extends to all parts of state, § 78. Telegraph, service by, § 1017. PROFITS: See Executors and Administrators, V. From time of execution to redemption, § 707. Mesne, limitation of actions for, § 336. 1016 PROHIBITION— PUBLIC ADMINISTRATOR. PROHIBITION, alternative, requisites of, § 1104, Alternative or peremptory, § 1104. Appeal, § 1109. Appeals, code sections relating to apply, § 1110. Code sections that apply to, §§ 1105, 1109, 1110. Counterpart of mandamus, § 1102. Defined, § 1102. Effect of on proceedings in inferior tribunal, § 1102, Hearing at any time, § 1108. Holidays, may be issued and served on, § 76. In what cases may issue, § 1103. Issued on affidavit, § 1103. Limitation of action, eifect of prohibition, § 356. May be issued or served any day, § 134. New trial in, § 1109. New trials, code sections relating to, apply, § 1110. Peremptory, requisites of, § 1104. Rf'tuin and hearing may be at any time, § 1108, Superior judge or court may issue, § 76. Supreme court may issue, § 51. Supreme court may not grant at chambers, § 165. To whom may Issue, § 1103. What courts may issue, § 1103. What sections cf code apply to, §§ 1105, 1109. When will issue. § 1103. PROOF: See Evidence. PROPERTY, definition of injury to, § 28, Includes real and personal, § 17. Joinder of actions for injuries to, § 427. PROSECUTION, dismissal of action for want of, § 583. PROVISIONAL REMEDIES, affidavit may be used on § 2006. PUBLIC ADMINISTRATOR, account, failure to, a mis- demeanor, § 1744. Account, failure to, duty of district attorney, § 1744. Account, failure to, punishment for, § 1744, Account, copy of to be filed with estate, § 1739. Account, order for, § 1735. Accounting to county clerk, time of, § 1739. Accounting and delivering up estate, where executor appointed, § 1730. Act requiring coroner to act as in certain cases, p. 781 Bond of, § 1727. Civil officers to notify of property subject to waste, S 1731. PUBLIC ADMINISTRATOR. 1017 Code sections applicable to, § 1743. Compensation and allowances of, § 1618. Deposit of moneys with county treasurer, § 1737. Deposit with county treasurer, duties and compensa- tion of treasurer, § 1737. Deposit with county treasurer, investment by treasurer, § 1737. Deposit with county treasurer, payment of unclaimed money into state treasury, § 1737. Deposit with county treasurer, money, how drawn, § 1737. Deposit of funds with corporation, p. 769, § 3, Stats. Duty of persons in whose house stranger dies, to give notice to, § 1728. Escheat, § 1737. Estates which may be administered by, § 1726. Every six mouths return of condition of estate to be made, § 1736. Examination of one charged with embezzlement, ques- tions to be written, signed and filed, § 1734. Examination of one charged with embezzlement, pun- ishment for disobedience or refusal to answer, § 1734. Examination of person charged with embezzlement or withholding estate, § 1733. Failure to account, a misdemeanor, § 1744. Failure to pay over money, proceeding against, for, § 1740. Fees of officers, when and by whom paid, § 1741. How to administer, § 1729. Inventory, § 1729. Letters of, when and how obtained, § 1727. Must institute suits to recover property, § 1732. Must take out letters with reasonable dispatch, § 1727. Not to be interested in payments, § 1738. Oath of, § 1727. Oaths may be administered by, § 1742. Order for delivery of property to heirs or executors, § 1735. Order of appointment, § 1365. Order on, to turn property over to county treasurer, § 1740. Order on, to account, § 1735. Proceedings against for failure to pay over money, § 1740. Report, affidavit that he is not interested in payments, S 1738. 1018 PUBLIC ADMTNISTn.\TOn-QUESTION3 OF LAW. Return of coiulilion of estate to be made every six months and published, § 1736. Unclaimed estate, how di.sposed of, § 1789. Waste, civil otSeer must inform of, § ]',:;!. What estates may be adminlsLered by. § 1726. When may be directed to take estate, § 1411. When to account for estate, § 1730. When to deliver up estate, § 1730. When to settle with county clerk, § 1739. When to be appointed, § 13G5. PUBLICATION, affidavit to prove, § 2010. Changed names, of, § 1279. Default, where service by, procedure, § 585. Judgment-roll, where summons served by, § G70, Newspaper, publication in, how pi'oved. § 2010. Notice of dissolution of corporation, § 1230. Notice of petition for probate, of, § 1303. Notice to lienholders, on partition, service of, by. § 7G2. Order for sale of ward's property, of, § 1783. Order to appear in escheat proceedins',s, of, § 12G9. Petition for change of name, of, § 1277. Probate proceedings, publications in, number of, § 1713. Probate proceedings, how often to be made in general, § 1705. Service on unknown or nonresident parties in partition, § 757. Summons, of, default for failure to answer, § 5S5. Summons, when and how made, §§ 412, 413. Summons in partition, § 757. Summons to unknown parties in suit to quiet title, § 750. PUBLIC LAND, certificate of purchase or of location as evidence, § 1925. Adverse possession, effect on certificate of location or purchase, § 1925. Holding for mining purposes, effect on certificate, § 1925. Void letters patent, limitation of action to recover land, § 317. PUBLIC OFFICER: See OfHcer. PUBLIC USE, § 1238. See Eminent Domain. QUESTIONS OF LAW AND FACT. Fact, questions of, to be tried by jury, § 2101. QUESTIONS OF LAW AND FACT— QUIETING TITLE. 1013 Issues of fact, how tried, § 592. Issues of fact to be tried by jury unless waived, § 882. Issues of law, how tried, § 591. Law, questions to be addressed to court, § 2102. Law, what are questions of, § 2102. V\'rit of possession, § 380. QUIETING TITLE. Action involving validity of gift or trust under will, determination final, § 738. Action involving validity of gift or trust under will, will admissible, § 738. Action lies to determine adverse claim in what cases, §§ 738, 749. Action to be brought in county where land is, § 78. Adverse claim, action to determine, § 1050. Adverse claims may be determined in condemnation proceedings, § 1247. Adverse claim, parties in -'lit to determine, §§ 380, 381. Costs, when plaintiff cannot recover, § 739. Cotenants may unite in suit to determine adverse claim, § 381. Cumulative, remedy is, § 751. Default, § 739. Disclaimer, § 739. Hearing and evidence, § 751. Heirs, quieting title by, § 1452. Improvements, § 741. Injunction, § 526. Judgment in and conclusiveness of, §§ 750, 751 .lury trial, right to, § 738. Jurisdiction, court has to inquire into and determine what questions, § 751. Lis pendens, to be filed, § 749. Parties, §§ 379, 738. Parties, unknown defendants, how described, § 749. Possession of executor for purpose of, § 1581. Suit for, by or against executor, § 1582. Summons, form and contents of, § 750. Summons, posting copy on property, § 750. Summons, publication of, § 750. Summons, service of, § 750. Summons, service of, affidavit as to, § 750. Summons, service on unknown or nonresident defend- ants, § 750. Summons, time to issue, § 750. Survey, etc., of property, §§ 742, 743. Title, termination, during action, § 740. 1020 QUIETING TITLE— REAL PROPERTY. Unknown parties, claims of, how determined, §§ 749 751. Unknown parties, hearing of adverse claim and Judg- ment, § 751. Unknown defendants, how may be described in com- plaint, § 749. Unknown parties, judgment by default not entered, § 751. Unknown parties, rights and liabilities, § 750. Unknown parties, judgment, conclusiveness of, § 751. Unknown parties, summons, how served, § 760. Unknown parties, summons, issued to, § 749. QUI TAM ACTION, limitation on, § 340. QUORUM, arbitrators, §§ 1053, 1285. Majority may act where joint authority given, § 15. Referees. § 1053. Senate sitting as court of impeachment, quorum of, § 36. QUO WARRANTO: See Usurpation of Office and Fran- chise. Superior court or judge may issue, § 76. RAILROAD CORPORATION, eminent domain, § 1238. Condemnation for estimating cost of fences and cattle- guards, § 1248. RAILROADS. Crossings, how to be made, § 1240. Crossings, separation of grades, § 1240. REAL PROPERTY, acknowledgment of conveyance, any judge or justice may take, § 179. Actions respecting, must be brought where, § 392. Action to recover possession, costs of course allowed, when, § 1022. Adverse possession of, §§ 318 et seq. See Adverse Pos- session. Agreement for sale of, to be written, § 1973. Arbitration, question of title may not be submitted to, § 1281. Attachment of, manner of, § 542. Attachment of, release, § 559. Authority of agent to sell, to be written, f 1978. Boundaries, rules for determining, § 2077. REAL PROPERTY. - 1021 Claimants under common source of title may unite, § 381. Cloud on title, parties in suit to remove, § 381. Coextensive with what, § 17. Contract for purchase of, by decedent, sale of, §§ 1565- 1568. Costs allowed of course in action involving title, § 1022. Cotenants, parties in suits concerning, § 381. Defendants In action to determine adverse claims, § 380. Description of In pleading, § 455. Description of, rules for construing, § 2077. Ejectment: See Ejectment. Execution affecting, to issue to whom, § 687. Execution purchaser may recover for injury to, after sale and before delivery, § 746. Execution sale of, how conducted, § 694. Execution sale, injury to, after, § 746. Execution sale of, notice, § 692. Execution sale of, redemption, § 701. Execution sale of, what title passes, § 700. Forcible entry, etc., §§ 1159-1179. See Forcible Entry and Detainer. Injury to, after execution sale and before delivery, § 746. Issue of title, evidence of continued possession, of remote occupant, § 1834. Joinder of claims to recover, § 427. Judgment after death not lien on, § 669. Judgment for delivery of, § 682. Judgment lien on, § 671. Judgment lien on, in another county, § 674. Judgment of justice's court a lien on, when, § 900. Lien on, action to foreclose, where brought, §§ 78, 392. Limitation of actions respecting: See Limitation of Actions. Lis pendens, filing of in action relating to, § 409. Mortgage on action to foreclose, where brought, § 392. New parties in action relating to, bringing in, § 389. Parties in action respecting, § 379. Partition of, §§ 752-801. See Partition. Party, application of person to be made. In act'on respecting, § 389. Pleadings, description in, § 455. Presumptions as to possession of, § 321. Quieting title, §§ 738-751. See Quieting Title. Re-entry after eviction, when a contempt, § 1210. 1022 REAL PROf'KRTY- HECEIVER. Return of execution on, § CS3. Suit to recover: See Ejectment. Title, question of, may not be submitted to arbitration, § 1281. Transferred cases concerning, proceedings after judg- ment, § 400. Trespass on, limitation of action for, § 338. Undertaking on appeal to stay judgment for sale or delivery of realty, § 945. Writing, necessity of, to create an interest in, §§ 1971, 1972. REASONABLE DOUBT, evidence, § 2061. RECEIPT as evidence of payment, § 1963. For payment of rent, presumptions arising from, § 1963. For securities in partition proceedings, § 790. Sheriff's, for accounts collected in attachment, § 547. Who entitled to, § 2075. RECEIVER, action, may bring, § 568. Action, may defend, § 5G8. Appeal lies from order appointing, § 963. Attorney cannot be, § 5C6. CJode sections governing appointment, powers and duties, § 304. Collection of debts, rents, etc., § 568. Compromise, may, § EG8. Corporation may act, § 1348. Corporation, statute authorizing to act as, p. 768. Corporation as, qualilication, oath, bond, § 1348. Corporation, for, §§ 564, 565. Creditor, appointment in action by, § 564. Debts, may collect, § 568. Disqualification of persons to act as, § 566. Escheated estate, for, § 1270. Ex parte application for, undertaking, § 566. Ex parte application for, additional undertaking, § 566. Execution in aid of, § 564. Foreclosure, a,ppointment in, § 564. Fraudulent purchase, appointment in action to vacate, § 564. Funds in hands of, may be invested, § 569. Grounds for appointing, § 564. Investment of funds in hands of, § 569. Judgment, to carry into effect, § 564. Judgment, appointment after, § 564. RECEIVER-RECORD. 1023 Oath of, § 567. Partnership cases, appointment in, § 564, Possession of property, § 568. PoTvers, § 5G8. Rents, may receive, § 568. Undertaking, additional, on appointment of, § 566. Undertaking on appeal, to stay judgment appointing. § 943. Undertaking on ex parte application for, § 566. Undertaking of, § 567. When may be appointed, § 504. Who may not act as, without consent of parties, § 566. RECITALS, conclusiveness of, § 1962. Statutes, recitals in, effect of, § 1903. RECORD: See Evidence; Lis Pendens. Abstract of justice's judgment must be recorded to create lien on land, § 900. Actions, of, clerk must keep, § 1052. Act transferring records of old courts to courts created by new constitution, p. 782. Appeal, what constitutes record on, § CGI. As evidence: See Evidence. Attachments, recorder to index, § 542. Attachments, how indexed, § 542. Attachment, release of, to be recorded, § 559. Attachment, release of, how recorded, § 559. Certificate of recording officer prima facie evidence of, § 1833. Citizen may inspect, § 1892. Copy of foreign judicial rc-cord, when admissible, § 1907. Copy of, officers to give, § 1893. Copy of, seal, § 153. Court, parties cannot contradict record of, § 1837. Courts of, what are, § 34. Decedent's estate, lease of, recording, § 1579. Docket, justice's, a public, § 93. Execution, return of, § 683. Executor's conveyance, recording, §§ 1601, 1604, 1605. Guardian's bond and letters, recording, § 1756. Lease of decedent's estate, recording, § 1579. Letters of administration, and testamentary, recording, § 1337. Lis pendens, § 409. Mechanic's lien, recording, § 1189. Mechanic's lien, claim of, § 1187. 1024 RECORD— REFERENCE. Mortgage of decedent's estate, recording, § 1579. Notice of completion of building, fee for recopding, § 1187. Not to be removed from office, § 1950. Partition, of conveyance in, § 787. Partition of decedent's estate, recording, § 1684. Probate homestead, decree relative to, § 1719. Public, dockets and papers of justice, § 914. Public, of private writing, how proved, § 1919. Public, not to be removed from public office, § 1950. Recorded probate proceedings as notice, § 1706. Register of actions, what to be entered in, § 1052. Transfer from old court to new, §§ 55, 79. What constitutes, on appeal, § G61. REDEMPTION, decedent's estate, of, by judgment debtor, § 1505. Execution, from, §§ 701, 707. Execution, from, notice, § 703. Execution, from, payment of taxes, interest, liens, §§ 702, 703. Execution, from, who may make, § 701. Mortgage: See Mortgages. Mortgage, note of record of, to be produced, § 705. Payment, to whom to be made, § 704. What necessary to, § 705. RE-ENTRY on property after eviction, when a contempt, § 1210. REFERENCE, account, of long. § 639. Account of executor, referring to referee, § 1636. Account, reference of, on judgment by default, § 585. Account, reference of, questions involving, § 639. All must meet, but a majority may act, § 1053. Attorney, accusations against, § 298. Bill of exceptions, settlement by referee, § 650. Consent, by, when may be ordered, § 638. Continuance, costs may be imposed as condition of, § 1029. Court commissioner, to, § 640. Decedent's estate, claims against, §§ 1507, 1508. Default, reference, when may be ordered, § 585. Depositions, to take, in proceeding to remove attorney, § 298. Evidence, rules of, in general, § 2103. Failure of parties to agree, appointment by judge, § 640. REFERENCE— REMITTITUR. lua» Finding, effect and force of, §§ 644, 645, 1507. Finding, how excepted to and reviewed, § 645. For information of court, §§ 638, G39. Issue, of, by court, § 592. Judgment on finding, § 644. Judgment-roll, findings of referee part of, § 670. Objections to referee, §§ 641, 642. Ordered on motion, in what cases, § 639. Ordered upon agreement of parties in what cases, § 638. Partition, in, to determine lienholders' rights, § 761. Partition proceedings, in, §§ 761 et seq. See Partition. Question not arising upon pleadings, of, § 639. Referee, decision of, meaning of, § 1033. Referee, disqualification of, grounds for, § 641. Referee, fees of, amount of, §§ 1028, 1508. Referees, number of, § 640. Referee, objection to, grounds for, § 641. Referee, objections to, procedure on, § 642. Referee, qualifications of, § 641. Referee, quorum, § 1053. Referee, what disqualifies, § 641. Referee, who may not act as, § 641. Repovt, findings of fact and conclusions of law, sepa- rately stated, § C43. Repoit to be made within twenty Aays, § 643. Seamen, of claims of, § 826. Statement on motion for new trial, when case tried before referee, § 659. Supplementary proceedings, disobedience of, con- tempt, § 721. When ordered after judgment on demurrer, § 636. When parties do not consent, § 639. REGISTER of actions, clerk must keep, § 1052. REHEARING, in supreme court, § 43. RELATIONSHIP: See Affinity; Consanguinity. Declarations of decedent respecting, § 1870. REMEDY, judicial, defined and classified, §§ 20, 21. Merger of civil and criminal, § 32. See Actions. REMITTITUR, §§ 56, 958. Code CivU Proc.— 65 1026 RENEWAL— RESPONDENT. RENEWAL, application for order, of, § 182. Execution in justice's court, renewal of, § 903. RENTS: See Estate of Decedent; Landlord and Tenant. From time of execution to redemption, § 707. Limitation of actions respecting, §§ 319, 336. Receiver may collect, § 568. REPLEVIN, §§ 509-521. See Claim and Delivery. REPORTER, phonographic, §§ 268-274. See Phonographic Reporter. Supreme court decisions, § 262. REPUTATION, common, evidence of when admissible, § 1870. Presumption of ownership from, § 1963. RESCUING person, contempt, § 1209. RES GESTAE, evidence admissible as, §§ 1850, 1870. RESIDENCE. Nonresident, place of action against, § 395. Of justices of peace, § 159. Of superior judges, § 158. RES JUDICATA, conclusiveness of judgment, general rules, § 1908. Conclusive, judgment is, when § 19G2. Conchisivtncss, judicial record may be impeached, on what grounds, § 1916. Conclusiveness, what deemed adjudged, § 1911. Conclusiveness, parties, when deemed the same, § 1910. Conclusiveness, action involving validity of gift or trust, § 738. Conclnsiveness of foreign judgment, § 1915. Conclusiveness, judgment of court of admiralty of foreign country, § 1914. Orders as, §§ 1908, 1909, 1962. Parties deemed same, when, § 1910. Recoiil of another state as, § 1913 Record of court of admiralty as, § 1914. RESPONDENT, who is, § 938. RI^STITL'TION- REVIEW, WRIT OF. 1S)27 RESTITUTION of property on reversal, § 957. RETROACTIVE force of code, § 3, Statute of limitatious, § 362. RETURN: See Executions; Summons. Certiorari, § 1070. Certiorari, of, perfecting, § 1075. Execution, of, time for, § 683. Officer summoning jurors, of, §§ 227, 232. Summons returned, how, § 410. REVIEW, WRIT OF, application for, how made § 1069 Chambers, powers at, §§ 165, 166. Clerk to return writ with transcript required, when, Code sections relating to appeals apply, § mo. Code sections relating to new trials apply § mo Code sections relating to rules of practice appiy to § 1109. ^^^ ' Contents of, § 1071. Costs, § 1032. Directed to whom, § 1070. Extent of review under, § 1074. Form of writ, § 1071. Hearing, § 1075. In what cases may issue, § 1068. Judgment, § 1075. Judgment, copy of to be sent to inferior tribunal § 1076. ' Judgment-roll, what constitutes, § 1077. Notice of application for, § 1069. Return and hearing may be at any time, § 1108. Return of, defective, perfecting, § 1075. Rules of practice, § 1109. Scope of review under, § 1074. Service of, § 1073. Staying proceedings in, in inferior court § 1072 Stay, effect of as, § 1072. Stay, may be granted or not, § 1072. To whom will issue, § 1068. Writ of certiorari denominated writ of review, § 1067 What to contain, § 1071. Who may grant, §1068. 1028 REVIEW, WRIT OF— SAN BERNARDINO COUNTY. Whom to be directed to, § 1070. When may be granted, § 1068. REVOCATION of wills: See Wills, VI. RIOTS, justice's court has jurisdiction, § 115. Limitation of action against municipality for, § 340. RIPARIAN OWNERS, condemnation of water, damages, rules for ascertaining, § 1248. RIVERS. Boundary, river as, § 2077. Venue of action for offense on river situated in several counties, § 393. ROADS. Boundary, road as, § 2077. ROLL OF ATTORNEYS, how kept, § 280. ROUTS, justice's court has jurisdiction over, § 115. RULE inconsistent with code, repealed, § 18. Of construction of code, § 4. Of court, courts of record may make, § 129. Of court, limitation on power to make, § 129. Of justice's court, § 95. When take effect, § 130. SACRAMENTO COUNTY, number of superior judges, § 66. Act increasing number of superior judges in, p. 765. SALARY, deputy sheriff's, in justice's courts, § 87. Justices', §§ 97, 103. Justice's clerk's, and his deputy's, § 97. What necessary to, § 705. Justices' clerk and assistants in cities and counties over 200,000, pp. 776, 777, Stats. Lien for: See Lien. Preferred claim, §§ 1204-1207. SALES: See Executions; Foreclosure; Partition. Over two hundred dollars, effect of statute of frauds, § 1973. SAN BERNARDINO COUNTY, act increasing number of superior judges in, p. 7G6. SAN DIEGO COUNTY— SEAL. 102J SAN DIEGO COUNTY, acts increasing and lessening num- ber of superior judges in, p. 7G6. SAN FRANCISCO. Classification of judges as to terms of office, § 68. Judgments and orders of any session as efiective as If all judges presided, § G7. Justices of tiie peace in, salaries of, § 97. Justices' cleric and assistants in, act relating to, pp. 776, 777. Number of superior judges, § 67. Police court of, act transferring records to, p. 784, § 3. Presiding judge, election and removal of, § 07. Presiding judge to distribute and prescribe order ot business, § 67. Superior court, presiding judge to prescribe times of holding special sessions, § 73. Superior court, sessions of, number of, § 67. SAN JOAQUIN COUNTY. Number of judges, § 66. SAN LUIS OBISPO COUNTY, acts increasing and lessen- ing number of superior judges in, p. 766. SANTA CLARA COUNTY. Number of judges, § 66. Act increasing number of superior judges in, p. 766. SATISFACTION, attorney may acknowledge, § 283. Of judgment, how made, § 675. SAVINGS AND LOAN ASSOCIATION, dissolution of, § 1234. SAVINGS BANK, deposits: See Estate of Decedent, II. Limitation of action against, § 348. SCIRE FACIAS, abolished, § 802. SEAL, compromise without, good, § 1934. Court, of, clerk to keep, § 152. Courts, of, how provided, § 151. Courts, of, to what documents to be affixed, § 153. Courts, what courts must have, § 147. Court, of, when private seal used, § 151. Court commissioner, of, § 2i>^. Defined, §§ 14, 1930, 1931. 1030 SEAI^SENATE. Distinction between sealed and unsealed instruments abolished, § 1932. Execution, § GS2. Foreign, § 1931. Guardian, § 153. Judicial notice taken of, § 1875. Police court, of, § 150. Private, how made, § 1931. Public, how made, § 1931. Scroll or sign, § 1931. Sealed instrument may be changed or discharged by unsesled, § 1932. Superior court, of, § 149. Supreme court, of, § 148. Telegram, how described by, § 1017. To what document to be affixed, § 153. Want of not to affect validity of writs, process, etc., when, p. 781, Stats. "What courts shall have, § 147. Writ, necessary for, § 153. SEALED VERDICT, § 617. SEAMEN: See Shipping. Exempt from jury duty, § 200. SEARCHER OF RECORDS, what property of exempt, § 690. SECRETARY of supreme court, §§ 265, 266. Of superior court, in certain cities and counties, p. 764, Stats. SECTION, refers to what, § 17. Meaning of, § 17. SEDUCTION. Guardian may sue for seduction of ward, § 375. Limitation of action for, § 340. Parent may sue for daughter's, § 375. Sitting of court, private, § 125. Unmarried female may recover exemplary damages for own, § 374. Unmarried female may sue for her own, § 374. SEISIN, within five years, when necessary to recover realty, §§ 318, 319. SENATE: See Impeachment. SER\aCK— SHERIFF. 1031 SERVICE: See Process. Affidavit, service provable by, § 2009. Appearance equivalent to, § 416. Association, on, §§ 388, 411. Attorneys, on, manner of, § 1011. Attorney entitled to be served for party, § 1014. Certiorari, of, § 1073. Complaint, copy of, §§ 410, 527. Contempt proceedings, § 1016. Corporation, oa, § 411. Expense of, included in costs, § 1021. Guardian, on, equivalent to service on ward, § 1722. Injunction, of complaint and affidavit, in, § 527. Mail, by, computation of time, § 1013. Mail, by, how made, § 1013. Mail, by, when complete, § 1013. Mail, by, when may be made, § 1012. Mandamus, of, § 1096. Need not be made if defendant does not appear, § 1014. Nonresident, on, attorney, § 1015. Nonresident, on, manner of, § 1015. Notice and papers, how served, § 1011. Notices, after appearance defendant entitled to all, § 1014. Party, on, manner of, § 1011. Prohibition, of writ of, §§ 1096, 1105. Proof of, § 415. Publication, by, §§ 412, 413, 415. Review, writ of, § 1073. Several defendants, some served, § 414. Subpoena, of. §§ 1987, 1988. Telegraph, by, manner of, § 1017. Tenant holding over, of notice on, § 1162. Time for, extension of. § 1054. SETOFF, assignment of chose not to prejudice, § 368. Bill or note, assignments not affected by setoff, § 368. Cross-demands deemed compensated, § 440. Cross-demands not affected by death or assigiunent, § 440. Improvements, as in ejectment, § 741. Mechanic's lien, § 1184. SHAM ANSWER, striking out, § 453. SHERIFF: See Arrest and Bail; Attachment; Justice's Court. 1032 SHERIFF. Action asainst for nfficial acts, § 1055. Arrest by, how made, § 485. Attachment of vessel, §§ 819, 820. Attorney, disqualification to act as, § 96. Bail, liability as, on bond, § 502. Bail money to be deposited in court, § 498. Bail, when liable as, § 501. Deed of, to escheated estate, § 1271. Deed, when to be executed, § 703. Deputies, in justices' courts, duties, § 87. Deputies, in justice's court, liability for, § 87. Deputies, In justices' courts, salary, § 87. Disqualification to act as attorney, § 96. Duty to provide suitable rooms for Judge, § 144. Escape, limitation of action against, for, § 340. Ex ofiicio officer of justices' court, § 87. Execution, not to purchase at, § 694. Execution, penalty for selling under, without notice § 693. Execution, writ of, requires what of, § 682. Execution may issue to any, § 687. Execution sale: See Executions. Expenses of providing suitable rooms, how paid, § 144. Indemnity to, on claim of property, § 689. Judgment against, conclusive against sureties, when, § 1055. Jurors, list of, to be delivered to sheriff, § 219. Jurors, summoning forthwith, § 226. Jurors, summoning to complete panel, § 227. Justice's court, sheriff an officer of, § 87. Justice's court, sheriff, attendance and duties of, § 87. Justice's court, sheriff, deputy, duties of, § 87. Justice's court, sheriff, deputy, salary of, § 87. Justice's court, sheriff, ex officio officer of, § 87. Justice's court, sheriff, liability for deputies, § 87. Justice's court, sheriff, liability on bond, § 87. Justice's court, duty to provide rooms for, § 88. Justice's court, duty to serve process, etc.. Issued by, § 87. Liability for arrest of witness, §§ 2068, 2069. Liability for taking property of third person under execution, § 689. Liability on bond, for duties In justices' courts, § 87. Liability to third person in replevin, § 519. Limitation of action against, §§ 339, 340. Official bond, liability on for sheriff as bail, § 502. Powers and duties of, prescribed by Political and PenaJ Codes, § 262. SHERIFF— SHIPPING. 1033 Receipt of, for accounts collected in attachment, § 547. Requisition to, in replevin, § 511. Service of subpoena en concealed witness, § 1988. Sureties' liability for default in deposit made in lieu of bail, § 498. Summon jurors, how to, § 225. To detain prisoner arrested for contempt until dis- charged, § 1214. To notify plaintiff of arrest. § 804. SHERIFF'S DEED, when to be executed, § 703. To escheated estate, § 1271. SHIPPING, appearance, who may enter and defend action, § 821. Attached vessel, claims of seamen against, how proved, § 826. Attached vessel, notice of sale, § 824. Attached vessel, sale of, application of proceeds, § 824. Attached vessel, sale of, application of proceeds where claim for wages involved, § 825. Attached vessel, sale of at auction, § 824. Attachment of vessel, claim for wages may be asserted notwithstanding, § 825. Attachment of vessel, custody, § 820. Attachm.ent of vessel, discharge of, § 823. Attachment of vessel, discharge of, how procured, § 822. Attachment of vessel, discharge of, undertaking or deposit, § 822. Attachment of vessel, clerk to Issue, § 818. Attachment of vessel, right of, § 817. Attachment of vessel, sheriff may not interfere with merchandise, baggage, etc., § 820. Attachment of vessel, sheriff must execute writ with- out delay, § 820. Attachment of vessel, time for, § 817. Attachment of vessel, undertaking, § 818. Attachment of vessels, undertaking, exception to sure- ties, § 821. Attachment of vessel, undertaking, justification of sure- ties, § 821. Attachment of vessel, who may defend action, § 821. Attachment of vessel, writ to be directed to what sheriff, § 819. Claim of mariner or seaman, contest of, § 826. 1034 SHIPPING— SICKNESS. Claim of mariner or seaman, failure to contest, admis- sion, § 826. Claim of mariner or sea.man, reference of on contest, § 826. Claims of mariner, review of finding of clerk or referee respecting, § 826. Claims of seamen, how proved, § 826. Claims of seamen against attached vessel, how proved, § 826. Complaint must be verified in action against vessel, § 815. Execution against ship, where claim for wages assert- ed, application of proceeds, § 825. Execution sale of vessel, notice, what to contain, § 827. Jury duty, employee of vessel is exempt from, § 200. Justice's court has no jurisdiction, § 114. Liens, limitation of action on, § 813. Liens on vessels, what demands constitute, § 813. Notice of sheriff's sale, what to contain, § 827. Owners, action to be against, § 814. Owners unknown. § 814. Parties defendant, lienholders, § 814. Parties defendant in actions against vessel, § 814. Res judicata, judgment of court of admiralty as, § 1914. Seamen's wages, exemption of, § 690. Seamen's wages, justice's court has no jurisdiction, § 114. Sheriff's sale, notice of, what to contain, § 827. Summons, service on master, mate, etc., § 816. Summons, service on owners of vessel, § 816. Vessels are liable for what claims, § 813. Vessels liable for injuries, § 813. Vessels liable for services, § 813. Vessels liable for wharfage and anchorage, § 813. Vessels liable on contract to carry, § 813. Wages of seamen, claim of against attached vessel, how proved, § 826. Wages of seamen may be asserted notwithstanding at- tachment of ship, how, § 825. 8H0RTH.AND REPORTER, §§ 268-274. See Phonographic Reporter. None in attendance, clerk to take testimony, § 1051. SICKNESS excuses non-appearance in contempt, § 1221, Juror, proceedings in case of, § 615. Justice, transfer of cause, § 90, SICKNESS— SOLE TRADER. 1035 Superior judge, appointment of substitute by governor, § ICO. SIGNATURE includes mark, § 17. Mark, signature by, to be witnessed by two persons, § 17. When admitted, §§ 44G-449. When admitted in juscice's court, § 887. SINGULAR includes plural, § 17. SISTER STATE, books containing laws of, presumed cor- rect, § 1900. Documents of, how proved, § 1918. Judgment of, how enforced, § 1913. Judicial record of, effect of, § 1913. Judicial record of, how proved, § 1905. Justice's judgment in, how proved, §§ 1921, 1922, Laws of, how proved, § 1902. Laws, unwritten, how proved, § 1902, Limitation laws of, § 361. SfTTINGS, public and private, §§ 124, 125. SLANDER, answer in, § 461. Justification, § 461. Limitation of action for, § 340. Mitigating circumstances, evidence of, § 461. Pleading in actions for, § 460. Undertaking for costs in, p. 778, Stats. SOCIETY, change of name, § 1276. SOLE TRADER, decree authorizing one to act as §§ 1817 1819. Hearing of petition, § 1816. Husband of, not liable for her debts, § 1821. Liabilities and rights of, § 1819. Liable for maintenance of minor children, § 1820. May have five hundred dollars of community or hus- band's property, § 1814. Notice of application to become, contents of, § 1812. Notice of application to become, proof of, § 1816. Notice of application to become, publication of, § 1812 Oath of, § 1818. Opposition, what to contain, and verification of, § 1815. 1036 SOLE TRADER— STATE. Petition, what to contain and when filed, § 1813. Petition, who may oppose, and how, § 1815. Recording decree authorizing, § i818. Rights and liabilities of, § 1819. Trial, § 1816. Who may become, § 1811. SONOMA COUNTY. Number of judges, § 66. SPECIAL ADMINISTRATORS: See Executors and Ad- ministrators, X. SPECIAL ISSUE not made by pleadings, how tried, § 309. SPECIAL PROCEEDING, "action" includes, § 363. Appeals in, § 1110. Costs on review other than by appeal, § 1032. Costs of course, when allowed, § 1022. Defendant in, § 1063. Defined, § 23. Judgment in, defined, § 1064. Judgments in, appealability, § 963. Motion and order in, same as in civil action, § 1064. New trials in, § 1110. Order in, § 1064. Particular proceeding: See Particular Title. Parties designated, how, § 1063. Plaintiff, § 1063. Reference, § 639. Remedies, divided into actions and special proceed- ings, § 21. Rules of practice, § 1109. Security for costs required of nonresident or foreign corporation, § 1036. Security for costs, failure of nonresident or foreign corporation to give, dismissal, § 1037. Time of taking depositions in, § 2020. Verification may be by aflidavit, § 2009. SPECIFIC PERFORMANCE, contract of decedent to con- vey: See Executors and Administrators, VIII. Powers of court, statute of frauds, § 1972. STATE, answer must be verified when state party, § 446. Bonds not required of, §§ 529, 1058. Condemning lands of, under eminent domain, § 1240. STATE— STATEMENT. 1037 Costs when state a party, § 1038. Escheat, §§ 1269, 1272. See Escheat Execution to be in name of people, § 682. Grantee of, limitation of action, § 316. Includes what, § 17. Injunction by, underta.king not required, § 529. Injunction suspending business of corporation, § 531. Limitations in actions by generally, § 345. Limitations in action for hospital dues, § 345. Limitation of action by, for forfeiture or penalty, § 340. Limitation of action by, respecting real property, §§ 315, 317. Proceedings, against, act authorizing, p. 784. STATE LAND: See Public Land. Condemnation of: See Eminent Domain. STATEMENT, amendments, extension of time, § 1054. Appeal, on, amended, service of, § 601. Appeal, on, amendment of, § 661. Appeal, on, how settled, § 661. Appeal, on, must contain only what, § 661. Appeal on, service on adverse party, § 661. Appeal, on, time for proposing, § 661. Appeal, what may be used on, § 950. Extension of time, § 1054. Justice's court, appeal from, § 92. New trial, amendment, time to prepare and serve, § 659. New trial, errors of law, specification of particulars, § 659. New trial, insufhciency of evidence, specification of particulars, § 659. New trial, judge to sign and certify, § 659. New trial, notice of settlement, § 659. New trial, power of judges in settling and certifying, § 653. New trial, how prepared where granted on court's own motion, § 662. New trial, presentment to judge, § 659. New trial, settlement of, § 059. New trial, tim.e to prepare and serve, s 659. New trial, to be filed, § 059. New trial, useless and redundant matter to he stricken out, § 059. New trial, where case tried by referee, § 659. 1038 STATE TREASURY— STATUTES. STATE TREASURY, deposit in, in condemnation proceed- ings, § 1254. STATUTE OF FRAUDS. Agreement for sale of real estate, § 1973. Authority of agent to sell realty must be written, § 1973. Building contracts, § 1183. Contracts which are within, § 1973. Lease not exceeding one year, v/riting not necessary, § 1971. Leasing, agreement for longer than a year, § 1973. Marriage, agreement of, § 1973. Marriage, agreement upon consideration of, § 1973. Mechanic's lien, what contracts must be in writing, § 1183. Promise of executor to answer out of own estate, § 1612. Promises to answer for debt, default or miscarriage of another, § 1973. Real property, writing necessity to creation of interest in, §§ 1971, 1972. Representation as to credit of third person to be writ- ten, § 1974. Sales over two hundred dollars, § 1973. Specific performance, effect of statute, § 1972. STATUTE OF LIMITATIONS: See Limitation of Actions. STATUTES: See Evidence. Authentication of foreign, § 1901. Books containing, as evidence, § 1900. Code, continuation of, § 5. Code repeals statutes on matters covered by, § 18. Code, consistent with, not continued in force, § 18. Code, inconsistent with, repealed, § 18. Code, private statute not repealed by, § 18. Code, repeal by, does not revive former law, § 18. Code, retroactive, is not, § 3. Constitution, definition of, § 1897. Construction, in general, § 1858. Construction of, for court, § 2102. Construction, court confined to terms or substance, § 1858. Construction, duty of judge, § 1858. STATUTES-STREAM, lUW Construction, effect to be given to all parts, § 1858. Constructions, two, construed in favor of natural right, § 18G6. Construction, v/here statute capable of two interpreta- tions, § 1866. Defined, §§ 1897, 1898. Intention of legislature to govern, § 1859. Limitation of action upon statute for penalty or for- feiture, § 340. Not continued in force because consistent v,-ith code, § 18. Not expressly continued in force repealed, § 18. Particular intent prevails over general, § 18^9. Particular provision prevails over general, § 1859. Pleading, private, § 459. Private, not repealed by code, § 18. Public and private, defined, § 1898. Recitals in, effect of, § 1903. Repeal by code does not revive former laws, § 18. Repeal of does not revive former law, § 18. Retroactive, code is not, § 3. Sales at auction, memorandum by auctioneer, § 1973. Section, meaning of, § 17. What are, § 1897. Written laws of state, in what contained, § 1897. STAY: See Appeals. Affidavits, use of to obtain stay, § 2009. Granting, until security given for costs, § 1036. STENOGRAPHERS, §§ 268-274. See Phonographic Re- porters. STIPULATION for transfer of action to another court, § 308. Of attorney, § 283. STOCK: See Corporations. Limitation of action to recover, sold for delinquent as- scssm.ent, § 341. STOCKHOLDER, limitation of action against, § 359. STREAM as boundary, § 2077. Venue of action for offense on stream situated in sev- eral counties, § 393. low STREETS— SUBSCRIPTION. STREETS. Limitation of action to contest assessment, § 349. Partition proceedings affecting, § 764. Right of city to take land for, not affected by code, § 1263. See Highways. STRIKING OUT. Disobedience of subpoenu striking out complaint or answer, § 1991. Order striking out pleading deemed excepted to, § C47. Sham answer, § 453. SUBMITTING CONTROVERSY without action, §§ 1138, 1140. See Arbitration. SUBPOENA, contempt for disobeying, §§ 1991, 1209. Definition of, § 1985. Disobedience to, forfeiture for, § 1992. Disobedience to, how punished, § 1991. Disobedience, striking out complaint or answer, § 1991. For what issued, § 1986. Issuance, who to issue, § 1986. Issued, how, § 1986. Justice of peace may issue to any part of county, § 919. Justices' clerk may issue, § 87. May require production of books, papers, etc., § 19S5. Nonresidents, service on, § 1015. Served, how, § 1987. Service on concealed witness, § 1988. What is, § 1985. Witnesses, to, deposition to be used in another state §§ 2036, 2037. Witnesses, §§ 1985-1994. See Witnesses. SUBROGATION by judgment debtor, § 709. Of surety on appeal bond, § 1059. Surety, subrogation of, and proceedings to obtain § 709. SUBSCRIBING WITNESS, opinion of, § 1870. See Witness. SUBSCRIPTION includes mark, § 17, SUGSTITUTION— SUMMONS. IWl SUBSTITUTION of parties to action, §§ 385, 386. SUCCESSOR in interest, substitution of as party, § 385. Wtiat justices of peace successors of others, §§ 98, 107, 917. Who to designate succeeding justice, §.918. SUMMONS: See Process; Forcible Entry and Unlawful Detainer. Affidavit for publication, as part of judgment-roll, § 670. Alias, when will issue, § 408. Alias from justice's court, §g 846, 847. Appearance equivalent to service, § 416. Complaint must be served with, § 410. Condemnation proceedings against state land, sum- mons, how served, § 1240. Contains what, § 407. Defendants residing in different counties, issuance of summons, § 406. Directed how, § 407. Dismissal of action for failure to issue or return, § 581. Eminent domain, in, § 1.245. Escheat proceedings, in, § 1269. Execution of where new county formed, p. 780, Stats. Failure to issue, dismissal of action, § 582. Failure to issue or return, cured by appearance, § 582. Failure to return, dis.missal of action for, § 582. Fee for service by person other than sheriff, p. 762, Stats. Forcible entry and detainer, in, §§ 1166, 1167 Interpreter, to, § 1884. Issuance, time of, §§ 406, 581. Issued how, § 407. Issued under seal, § 407. Joint contract, service where one or more appear, § 406. Joint debtor, after judgment, affidavit for, § 991. Joint debtors may be summoned after judgment, § 989. Joint debtors not summoned in original action, what to contain, § 990. Joint debtors, those served may be proceeded against, § 414. Judgment-roll, as part of, § 670. Jurisdiction of action acquired when. § 416. Justice's court in: See Justice's Court, VII. Justice's court, alias summons in, §§ 846, 847. Code Civil Proc. — 66 1042 SUMMONS. Justice's court, from, service by sheriff and deputy, § 87. Justice's court, to be served out of county, certificate to, § 849. Justice's court, to be served out of county, publication of, § 849. Justice's court, to be served out of county, service and return, § 849. Justice's court, who may sein^e, § 849. Limitation on time for issuing, §§ 581, 582. Limitation on time for return, § 581. Must contain what, § 407. Partition, in, § 756. Police court, in, § 930. Proof of service, certificate or affidavit must state what, § 415. Proof of service, how made, § 415. Proof of service by admission of defendant, § 415. Proof of service in case of publication, § 415. Proof of service made by person other than sheriff, § 415. Proof of service made by sheriff, § 415. Publication, affidavit, §§ 412, 750. Publication, concealed defendant, § 412. Publication, depositing summons and complaint in postoffice, § 413. Publication, foreign corporation having no agent, etc., §§ 412, 413. Publication, in suit to determine adverse claim, §§ 749, 750. Publication in suit to determine adverse claim against unknown owners, § 750. Publication, judgment-roll, § 670. Publication, manner of, § 413. Publication, nonresident, §§ 412, 413. Publication, procedure, § 412. Publication, time and frequency of, § 413. Publication, when and hov/ marie, § 412. Publication, when complete, § 413. Publication of, default for failure to answer, procedure § 585. Relief from judgment when no personal service, § 473. Return by person other than sheriff, § 410. Return by sheriff, manner of, § 410. Return, limitation of time for, §§ 581, 582. Return of, time of in forcible entry, § IIGG. Returned, how, § 410. SUMMONS— SUPERIOR COURT. IM Served, how, §§ 410, 411. Service, personal, when necessary, § 411. Service by person other than sheriff, § 410. Service by publication, in partition suit, § 757. Service by sheriff, manner of, § 410. Service in action against vessels, § 816. Service on county, city, or town, § 411. Service on domestic corporation, § 411. Service on foreign corporation, § 411. Service on guardian, § 411. Service on guardian of infant or lunatic, § 1722. Service on infant under fourteen, § 411. Service on insane person, § 411. S;ervice on part of defendants, procedure after, § 414. Service may be proved by affidavit, § 2009. Service, v.here parties associated in business, § 388. Service where parties transact business under common name, § 388. Signed by clerk, § 407. Waiver of, by appearing and pleading, § 406. Waiver of, in writing, § 40G. When may be issued, § 406. SUNDAYS are holidays, § 10. Holiday falling on Sunday, next day celebrated, §§ 10, 11. See Holidays. SUPERINTENDENT of railroad exempt from jury duty, § 200. SUPERIOR COURT: See Court; Probate Court; Superior Judge. Act transferring ref:oi"xls of other courts to, p. 782. Adjournments construed as recesses and not to prevent sitting, § 74. Always open, § 73. Appeal to, §§ 974-980. See Appeal. Apportionment of business where more than one judge, §§ C6, 67. Certifying cases to, from justice's court, § 92. Certified copy of list of jurors to be filed with clerk of. § 208. Costs on review, other than by appeal, § 1032. Docketing judgment of justice's court, § 898. Docketin-g judgment of justice's court, execution, § 899. Holding court by one judge for another at governors request, § 160. 104'4 SUPERIOR COURT— STJPKRIOR JUDGE. Incidental powers and duties, §§ 128-130. Jurisdiction is original and appellate, § 75. Juris'diction, appellate, has, in what cases, § 77. Jurisdiction, original, has in what cases, § 76. Jurisdiction, concurrent with justices' courts, § 113. Jurisdiction in eminent domain, § 1243. Jurisdiction to change name, § 1275. Justices ot" peace, shall designate which of two, is suc- cessor, wheu, § 918. May vacate its judgment, in what cases, § C63. Phonographic reporter for, §§ 2G8-274. See Phono- gi-aphic Reporter. Powers of, on appeal, § 980. Powers of district, county and probate courts conferred on, p. 764, Stats. Process extends to ail parts of state, § 78. Record, superior courts are courts of, § 34, Remitting judgment to, § 56. Rooms for, how provided and furnished, § 144. Rules, power to make, § 129 Rules, when take effect, §§ 129, 130. San Francisco: See San Francisco. Secretary of, in certain counties, p. 764, Stats. Seal, has, § 147. Seal of, § 149. Sessions held at county seats, § 73. Sessions, number of in counties having two or more jud'ges, §§ GG, 67. Sessions, regular, when held, § 73. Sessions, special, when held, § 73. Session of, by judge of another court, § 160. Transfer of action to another court, manner of, §§ 398. 399. Transfer to, from justice's court, jurisdiction, § 838. Transfer to, from justice's court, when and how ef- fected, § 838. Transfer of books, records, and actions to superior court. § 79. Vacation of judgment, grounds for, § 663. Writs, power of to issue, § 76. SUPERIOR JUDGE: See Superior Court. Absence of, authority of court commissioner, § 259. Absence, illness, or disability, appointment of substi- tute, § 160. Acknowledgment, may take, § 179. Affidavit, may take, § 179. Attorney may be selected to act as, § 72. SUPERIOR JUDGE— SUPERVISORS. IMt Chambers, at, powers of, § 166. Change of, for bias, etc., procedure, § 170. Computation of term, § 69. Decedent's estate, may present claim against, § 1495. Decedent's estate, proceedings where claim presented by, § 1495. Deposition, may take, § 179. Disqualification of, what matters amount to, § 170. Disqualified, transfer of cause to another, § 398. Eligibility, § 157. Expenses of, incurred in holding court for another. § IGO. Guardianship matters, powers of, at chambers, in, § 1G6. Holding court In another county, power of, § 71. Holding court for another at request of governor, § 160. Ineligible to any other office or public employment, § 161. Jurors, designating the estimated number of, § 204. Jurors, selection of, § 204. May hold court In another county, when, § 71. May take acknowledgment, affidavit, deposition, § 179. Not to have law partner, § 172. Number of in particular counties, acts relating to, pp. 765, 766. Number of judges, §§ 65, 66, 67. Order of, directing jury to be drawn, § 214. Order of, to impanel grand jury, § 241. Powers out of court, §§ 176, 1305. Probate: See Probate Court. Probate matters, power of, at chambers, in, § 166. Probation officer. See Probation Officers. Residence, place of, § 158. Secretary of in certain counties, p. 764, Stats. Sickness, absence or disability, requesting some other judge to sit, § 160. Successor to justice, superior judge when to designate, § 918. Term of office, § 68. Vacancy In, appointee holds until next general elec- tion, § 70. Vacancy In office, governor to fill, § 70. Vacancy in, one elected to fill holds for remainder or unexpired term, § 70. Writs, power of, to Issue, § 76. SUPERVISORS. Selection of jurors, §§ 204, 205. Vacancy In office of justice, supervisors to fill, § 111. »I6 SUPPLEMENTAI^SUPREME COTTRT. SUPPLEMENTAL complaint in partition, § 761. Complaint and answer, wlien allowed, § 404. Pleadings to bring in necessary parties, § 389. Pleadings to revive judgment, § 685. SUPPLEMENTARY PROCEEDINGS, arrest of debtor, § 715. Commitment of debtor, § 715. Contempt for disobeying orders in, § 721. Debtor must answer concerning property, to whom, § 714. Debtor must answer concerning property, when, § 714. Debtor need not answer outside of county, § 714. Disobeying orders in, punishment, § 721. Examination of debtor of judgment debtor, § 717. In justice's court, § 905. Ordering property applied on execution, § 719. Proceedings against third person asserting claim, § 720. Proceedings to compel debtor to appear, § 715. Proceedings upon assertion of claim by third person, § 720. Undertaking of debtor, § 715. Witnesses, § 718. SUPREME COURT: See Supreme Court Justice. Act transferring records of old supreme court to, p. 782. Adjournments do not prevent sittings, § 48. Appeal from judgment, may take what action on, § 956. Appellate jurisdiction of, § 52. Attorneys, removal or suspension of, § 287. Attorneys of, who are, § 275. Bailiffs, appointment and tenure of office, § 2GG. Bailiffs, duties of, § 2GG. Baillffs.number and qualification of, § 2G5. Bill of exceptions, application to, for proving, § 652. Clerk of, § 262. Concurrence of three justices necessary to transaction of business, § 54. Consists of what, § 40. Court in bank, chief justice to preside, § 45. Court In l)ank, convening. § 45. Court In bank, judgment, concurrence of four justices necessary, § 45. Court in bank, judgment, finality of, § 45. Court in bank, judement, rehearing, § 45. Court In bank, ordering case to be heard by, § 44. Court In bank, presence of four justices necessary, § 45. SUPREME COURT. 1041 Decision, all questions to be passed upon, § 53. Decisions to be written and reasons staled, §§ 49, 53. Departments, assignment of judges to, § 43. Department, chief may sit in either, § 4'i. Department, disagreement of judges, transmitting case to other department or to court in banlc, g 43. Department, Interchanges between judges, § 43. Departments, judgment, concurrence of three Judges necessary, § 43. Departments, judgment, rehearing, § 44. Departments, number of, § 43. Departments, one or more justices may adjourn, § 43. Departments, pov.'ers of in hearing causes, § 43. Department, rehearing case where three judges do not concur, § 43. Departments, three justices necessary to transact busi- ness, § 43. Election contest, preference given, § 57. Expense of rooms, etc., how defrayed, § 47. Incidental powers. §§ 128-130. Judgment, may affirm, reverse or modify, § 53. Judgment, powers of supreme court in relation to, § 53. Judgment, to be remitted, § 53. Judgment, when becomes final, § 44. Jurisdiction, appellate, § 52. Jurisdiction is original and appellate, § 50. Officers of, traveling expenses, § 47. Open always, § 47. Ordering case to be heard in bank, § 44. Phonographic reporter, provided for in Political Code, § 2C8. Probate appeals, preference given, § 57. Record, supreme court is court of, § 34. Rehearing, § 44. Remedial powers of, § 53. Remittitur, §§ 53, 5G. Reporter, d'ltles and powers of, prescribed by Political and Penal Codes, § 2G2. Rooms, furniture, etc., how jirovided for, § 47, Rules of, when take effect, § 130. Rules, power to make, § 129. Seal, has, § 147. Seal of. § 148. Seal of, duplicates, § im. Secretaries, appointment and tenure of office, 55 265, 266. Secretaries, duties of, § 2G6. Secretaries, number and qualification of, 5 265. 048 SUPREME COURT-SUPREME COURT JUSTICE. Sessions, § 47. Terms, § 47. Transfer of records, actions and proceedings, § 55, Traveling expenses of justices, § 47. Vacancy, election to fill, § 42. Vacancy in, appointee to hold until next general elec- tion, § 42. Vacancy in, governor to fill, § 42. When and w^here held. § 47. Writ of habeas corpus, any judge may issue, § 54. Writs, concurrence of three judges necessary to issu- ance, § 54. Writs, what, may issue, § 51. SUPREME COURT COMMISSION, creation of, p. 763. Stats. SUPREME COURT JUSTICE, attorneys, examination of candidates for admission as, § 276. Bill of exceptions, settlement by, § C52. Bill of exceptions, power of, respecting settlement of, § 653. Chambers, powers at, § 165. Chief justice, absence or inability of, selection of sub- stitute, § 45. Chief justice, eligibility, § 156. Chief justice to apportion business, § 44. Classification of for purpose of determining term of office, § 40. Computation of term of office, § 41. Disqualification of, what matters amount to, § 170. Disqualification, waiver of, § 170. Election of judges, § 40. Eligibility, § 156. Ineligible to any other office or public employment, § 161. May take acknowledgment, affidavit, deposition, § 179. Not to have law partner, § 172. Remedial powers of, § 957. Term of office, § 40. SUPREME COURT JUSTICE— SURETY. WW Traveling expenses, § 47, See Supreme Court. SURETY: See Bonds; Undertakings. Action to compel satisfaction of debt for which surety bound, § 1050. Administrator's bond, on, release of, §§ 1403, 1404. Attachment, in, exception to, § 539. Attachment, in, justification of, § 539. Citation to sureties on administrator's bond, § 1394. Contractor's bond, on, § 1203. Contribution, § 709. Corporation as, §§ 1056, 1057. Corporation as, jurisdiction and powers of insurance commissioners over, § 1056. Corporation accepted as sole surety, when and when not, pp. 762, 763, Stats. Corporation as, duty of insurance commissioner p 763 Stats. Exception to, in attachment in justice's court, § 867. Exception to, on attachment of vessel, § 821. Exception to, on appeal bond to superior court, § 978. Injunction, upon, exception to, § 529. Joinder of. In action on negotiable instrument, § 383. Judgment against officer conclusive against when § 1055. Judgment, entry of, against, on five days' notice, § 1055. Justification of, extension of time for, § 1054. Justification of, in attachment, §§ 554, 555. Justification of, on administrator's bond, § 1393. Justification of, on appeal, § 948. Justification of, on attachment of vessel, § 821. Justification of, on appeal bond to superior court, § 978. Justification of, in justice's court, § 92. Liability of, on undertaking to stay money judgment § 942. New security, application for, from administrator §§ 1398-1402. Objection to, waiver of by failure to except, § 529. Paying ju'dgment, compelling repayment, § 709. UeO SURETY— TAX COLLECTOR. Principal bound when surety is, § 1912. Principal, from what time bound, § 1912. Referee, surety cannot be, § 641. Replevin, in, exception to, § 513. Replevin, in, justification of, § 515. Replevin, bond, on, when not bound by affidavit of value, § 473. Subrogation, right of and proceedings to obtain, § 709. Subrogation, appeal bond, § 1059. Waiver of objection by failure to make, § 513. When bound, principal is also, § 1912. SURPRISE, amendment on ground of, § 473. As ground for relief from default judgment in justice's court, § 859. New trial on ground of, § 657. SURVEY. Land taken from public use, § 1242. Order to allow, in action of ejectment, § 742. SURVIVAL of action, §§ 1582-1584. Action not abated by death, disability or transfer, when, § 385. Death, effect on limitations, §§ 353, 355. SURVIVORSHIP, presumption as to, § 1963. SUTTER COUNTY. One superior judge for Sutter and Yuba counties, § 65. Separate judges for Sutter and Yuba counties, act pro- viding for, p. 766, Stats. TAX, adverse possession, payment of taxes, necessary to, § 325. Claim and delivery, § 510. Costs of course, in action involving, § 1022. Distribution of decedent's estate, must be paid before, § 1669. Limitation of action against tax collector, § 341. Redemption must pay what, §§ 702, 703. TAX COLLECTOR, limitation of action against, for seizure of goods, § 341. TEACHER— TIME. Ifl&J TEACHER exempt from jury duty, § 200. TEAMSTER, property of exempt from execution, S 690. TELEGRAPH company, eminent domain, § 1238. Line, employee of, exempt from jury duty, § 200, Seal, how described by telegraph, § 1017. Service by telegraph, § 1017. TENANT: See Forcible Entry and Unlawful Detainer; Landlord and Tenant. TENANCY AT WILL, to be terminated by notice, § 1161. TENANT FOR YEARS, waste, liability for, § 732. TENANT IN COMMON. Any number may sue or defend for all, §§ 381, 384. PartJes in suits concerning, §§ 381, 384. Partition, §§ 752-801. See Partition. Waste, liability for, § 732. TENDER before suit alTects costs how, § 1030. Keeping good, § 1030. Objection to, must be specified, § 2076. Offer in writing equivalent to, § 2074. Payment, tender is equivalent to, § 704. TENSE of words in code, § 17. TENURE OF OFFICE: See Office. TERRITORY included under state and United States, § 17. Public writings of, effect of and how proved, § 1924. TESTIFY, includes what, § 17. TIMBER, damages for cutting, §§ 733, 734. TIME. Accounting by executor, time for, § 1622. Action commenced when, § 350. Administration, letters of, time for granting, § 1372. Administration, notice of hearing of petition for letters of, time of, § 1373. 1059 Administration, petition for letters of, witliin what time to be made, § 1301. Answer, time for, § 407. Answer, extension of time for, § 473. Appeal, exception to sureties on, § 948. Appeal, justification of sureties on appeal, § 948. Appeal from judgment in proceedings to determine heirship, time for, § 1664. Appeal to superior court, statement on, time to file, § 975. Appeal to superior court, statement on, amendments, time to file, § 975. Appraisement, time to return, §§ 1443. 1451. Attachment of vessel, § 817. Attachment, time of issuance, § 537. Attachment, time of return of, § 559. Bill of exceptions, preparation and settlement, § 650. Bill of exceptions, time for settlement, § 659. Building, notice of acceptance of, time to file, § 1187. Citations to be served five days before return, § 1711. Citation to show cause why additional security should not be given, time to serve, § 1398. Claim, action on rejected, against estate of decedent, when to be brought, § 1498. Claim against estate, allowance or rejection of, time for, § 1496. Claims against estate, time to present, §§ 1491, 1493. Claim, filing of approved, time for, § 1497. Claim of mariner or seaman, time to contest, § 826. Code takes effect when, § 2. Complaint to adjudge heirship, time to answer, § 1664. Computation of, § 12. Computation of, when service by mail, § 1013. Computation of term of office of supreme judge, § 41. Condemnation proceedings, damages at what time as- sessed, § 1249. Condemnation proceedings, time for payment, §§ 1249, 1251. Continuance in justice's court, length of, | 876. Corporation, notice of application for dissolution of, time of, § 1230. Costs, motion to tax, time for, § 1033. Court commissioner, report of, time to make, § 729. Decision, time for, § 632. Default, relief from in justice's court, time to apply for, § 859. Demurrer, sustaining or overruling, time to amend, § 476. Demurrer to answer, time for, § 443. Deposition, time of notice of taking, § 2031. Deposition, time of taking, § 2020. Distribution and partition of decedent's estate, petition and notice, time for, § 1676. Distribution and partition of estate, proceedings, wlien may be instituted, § 1676. Election contest, time of trial of, § 1118. Election contest, time to file, § 1115. Entries in justice's docket, time of making, § 912. Entry of judgment, time for, and dismissal, § 581, subd. 6. Escheat proceedings, time to appear, § 1269. Estate of decedent, extension of time for settlement, § 1651. Exception, time of taking, § 646. Exception to sureties on injunction bond, time for, § 529. Execution, return of, time for, § 683. Execution, time within which to issue, § 681. Executor, account of sale by, time to return, § 1575. Executor or administrator, account by, time to file, §§ 1622, 1628. Executors, private sale by, time of, § 1549. Executor, return of sales by, § 1575. Extension of, generally, § 1054. Foreclosure, report of commissioner in, time to file, § 729. Guardian's account, time to file, § 1774. TIME. GuLirdian, notice of removal of propertj' by nonresi- dent, § 179S. Guardian of lunatic, notice of hearing of appointment of, § 17G3. Guardian's sale, service of order, § 1783. Indorsement, presumption as to time of making, § 1963. Inventory, time to return, §§ 1443, 1450, 1451. Judgment on verdict, time to enter, § G64. Judgment, relief from, time to move for, § 473. Judgment, time of entry of, § 664. Judgment, vacation of, § 663^/^. Justice's court, answer or demurrer to amended plead- ing in, time for, § 860. Justice's court, demurrer to answer in, time for, § 857. Justice's courts, demurrer to complaint in, time for, § 854. Justice's court, judgment in, to be entered at close of trial, § 892. Justice's court, judgment upon verdict in, to be entered at once, § 891. Justice's court, summons in to issue within one year, § 840. Lease, forfeiture of, time to apply for release against, § 1179. Legacy or devise, petition for payme^it, when may be filed, § 1658. Limitation on, for issuing and returning summons, § 581. Mandamus, notice of application for writ of, § 10S8. Mechanics' lien, time of continuance, § 1190. Mechanics' lien, claim of, time of recording, § 1187. "Month" means calendar month, § 17. New trial, hearing of motion for, § 660. Notice of application for discharge from prison, § 1145. Notice of hearing, § 594. Notice of intention to move for new trial, time to file, § 659. Notice of motion, time of service, § 1005. Notice of, to appear on petition for final distribution, § 1664. Preferred claim of servant, time to dispute, § 1207. Public administrator, accounting by, § 1739. Public administrator, return of condition of estates by, § 1736. Redemption, §§ 702, 703. TIME— TITLE. 1055 Rehearing, §§ 44, 45. Relief against default in justice court, application for, § 859. Report of referee or court commissioner, time to make, § 643. Rules of supreme court take effect when, § 130. Sole trader, petition to become, time to file, § 1813. Statement on motion for new trial, time for prepara- tion, amendment and settlement, § 659. Statement, service, amendment and settlement, time for, § 661. Summons, alias, in justice's court, time for issuance, § 847. Summons in civil action in police court, time of issu- ing, § 930. Summons, time for issuance of, § 406. Summons, time to issue in suit to quiet title, § 750. Summons in forcible entry, return of, § 1166. Summons, when to be issued and returned, § 581, subd. 7. Surrender by bail of arrested defendant, time for, §§ 488, 489. Will, contest of, after probate, § 1327. Will, contest of probate, time for, § 1333. Will, custodian of, within what time to produce. § 1298. Will, hearing of petition for probate, § 1303. Will, notice of time appointed for petition for probate of, § 1304. Will, nuncupative, time for probate of, §§ 1344, 1345. Within which an act is to be done, may be extended, § 1054. Within which summons may issue on complaint, § 406. TITLE, abstract of in partition, §§ 799, 800. Action involving, to real estate, costs allowed of course, when, § 1022. Adverse claim, action to determine, § 1050. Code, title of, § 1. Complaint to contain, § 426. Cotenants may unite in suit relating to, § 381. Declarations or admissions of predecessor, admissible § 1849. Defective title or want of title on papers, § 1046. Issue of, evidence of continued possession of remote occupant, § 1834. W56 TITLE— TRESPASS. Parties defendant in actions involving, § 379. Quieting, §§ 738-751. See Quieting Title. TOLL, costs of course in action involving, § 1022. TOLL-GATE, keeper of, exempt from jury duty, § 200. TORTS, definition of Injury to person, § 29. Definition of injury to property, § 28. Joinder of actions for, § 427. Kinds of, § 27. TOWN, mechanics' liens on town lots, § 1191. Partition of property Included in towusite, § 763. Service of summons on, § 411. TOWNSHIP, change In boundary, succession of justices, § 107. TRANSCRIPT, compensation of reporter, § 274 Justice's court, § 92. Of docket filed in another county, judgment becomes lien there, § 674. Of entries in justice's docket, prima facie evidence, § 912. On transfer of cause from justice's to superior court, § 838. Reference to, on hearing of motion for new trial, § 660. TRANSFER of action to another court, manner of, § 399. Of action to another court, when proper, § 397. See Place of Trial. TRANSFERRED CASE, remittitur, § 56. TREASON, number of witnesses to prove, § 1844. Proof necessary, § 1968. TREASURER: See Public Administrator. Deposit with, §§ 573, 2104. See Deposit in Court. Estate of decedent distributed to, in what cases, § 1703 Va. State, deposit with in condemnation proceedings, § 1254. TRESPASS, decedent, of, action for against executor, § 1584. TRESPASS— TRI A U WJI Executor, action for, by, § 15S3. Justice's court, action for, in, § 112. Land, on, limitation of action for, § 3oS. Personalty, to, limitation of action for, § 338. Timber cutting, §§ 733, 734. TRIAL: See Instructions. Absence of party, bringing issue to trial in, § 594. Adjournment: See Adjournment. Agreed case, §§ 1138-1140. Argument, case may be brought before court for, when, § GG5. Argument, order of, § 607. Argument, submission of case without, § G07. Argument, reserving case for, §§ CC4, 6G5. Argument, case reserved for, bringing before court, § 6G5. Calendar, causes must be entered on, § 593. Calendar, causes must remain on, till when, § 593. Calendar, dropping cause from, § 593. Calendar, restoring cause to, § 593. Challenge of jurors, §§ G01-G03. See Jurors. Change of, where county designated is not proper county § 397. Changing place of, for convenience of witnesses, § 397. Changing place of, for disability of judge, § 397. Changing place of, for impartial jury, § 397. Changing place of, grounds for, § 397. Clerk must keep register of actions, § 1052. Clerk to take testimony, when, § 1051. Compromise, offer of, how made and its effect, § 997. Conduct of, §§ G07-619. Conduct of, powers of judge, §§ 177, 178. Contempt, interference with is, § 1209. Contempt, §§ 1209-1222. See Contempt Continuance, costs on, § 1029. Continuance: See Continuance. Court, by, § G31. Deposit in court. §§ 573, 2104. See Deposit in Court. Decision of court, facts found and conclusions of law must be stated separately, § G33. Decision of court on question of fact, filing, time for. § 632. Decision of court on question of fact must be written, § 632. Error disregarded unless substantial rights affected, § 475. Code CivU Proc.— €7 TRIAL. Evidence: See Evidence. Exceptions, §§ 646-653. See Exceptions. Findings of fact and conclusions of law must be stated separately, § 633. Findings of fact may be waived how, § 634. Hearing, either party may bring issue to, § 594. Hearing in absence of party, § 594. Hearing, notice of, § 594. Instructions: See Instructions. Interpreter, when to be summoned and sworn, § 1884. Issue, §§ 588-596. See Issue. Issues, by whom triable, §§ 309, 591, 592. Issue of law, proceedings after determination of, § 636. Joint debtor, proceedings against, when not summoned in original action, §§ 989-994. Judgment on demurrer, proceedings after, § 636. Judge, powers of In conduct of proceedings, § 177. Jury, admonition to, on separation, § 611. Jury, deliberation of how conducted, § 613. Jury, deliberation of, what papers, etc., may an-d may not take with them, § 612. Jury, discharge of before verdict, retrial, § 616. Jury, how and when waived, § 631. Jury, in forcible entry and detainer, § 1171. Jury, in mandamus proceedings, § 1090. Jury, polling, § 618. Justlce'.s court, in: See Justice's Court, XIV. New, §§ 656-6631/2. See New Trial. Notice of hearing, § 594. Order of proceeding, § 607. Order of proof, in general, § 2042. Place of: See Justice's Court, XII. Place of, §§ 392-400. See Place of Trial. Police court, in, §§ 929-933. See Police Court. Powers of judge in conduct of proceedings, § 177. Presumption that all matters within issues were passed upon, § 1963. Private, in what ca^es may be had, § 125. Questions of fact, when for Jury, § 2101. Questions of law addressed to court, § 2102. Questions of law and fact, §§ 2101-2103. See Ques- tions of Law and Fact. Referee's findings must state conclusions of law and fact separately, § 643. Reference, §§ G3S-645. See Reference. Sick Juror, proceedings in case of, § 615. Sittings to be public, § 124. TRIAL— TRUSTEE. 1059 Sittings, when may be private, § 125. Special Issue, of, not made by pleadings, § 309. Statement on appeal: See Statement. Submitting controversy without action, §§ 1138, 1140. Verdict: See Verdict. Verdict, how declaied, § 618. Verdict, Informal, proceedings on, § 619. Verdict, sealed, rendered during adjournment, § G17, Verdict prevented, retrial of cause, § 616. View by jury of premises, conduct of, § 610. View by jury of premises, when allowed, § GIO. TROVER, action for, against executor, § 1584. Action for by executor, § 1583. Damages for cutting and carrying away trees, § 733. TRUST COMPANY, limitation of actions against, § 348, TRUST: See Trustee. Action Involving validity of trust under will, conclu- siveness of determination, § 738. Action to quiet title Involving trust under will, will admissible, § 788. In realty, writing, necessity of, §§ 1971, 1972. Jurisdiction over continues after distribution, § 1699. Parties in suit to establish, § 381. TRUSTEE: See Trusts. Account, decree settling conclusive if affirmed on ap- peal, § 1701. Account, settlement of after distribution, § 1099. Acocunting after distribution, procedure for, § 1699. Accounting by trustee under will, § 1G99. Accounting by trustee under will, citation, § 1699. Accounting by trustee under will, notice of, § 1699. Accounting by trustee under will, procedure In, § 1699, Appeal by, dispensing with bond, § 946. Appeal from settlement of account of, § 1701. Beneficiaries, may sue without joining, § 369. Compensation, apportionment among trustees, § 1700. Compensation of, on settling account of, after distri- bution, §§ 1699, 1700. Corporation as, qualification, oath, bond, § 1348. Corporation may act as, § 1348. Corporation, statute authorizing to act as, p. 7G8. Corporation, deposit of funds with and reduction of bonds, pp. 769, 770, §§ 2, 4, Stats. 1060 TRUSTEE— UNDERTAKING. Costs in action by and against, § 1031. Declination to act, proceedings on, §§ 1702, 1703. Deposit in court by, of subject of litigation, § 572. Express trust, of, who is, § 369. Joinder of claims against, § 427. Presumption that he has conveyed property, § 1963. Resignation, duty of court before acceptance, § 1702. Resignation or vacancy. Jurisdiction in cases of, § 1703. Vacancy or resignation, appointing on application of Interested party, § 1702. Vacancy, appointment to fill, notice to Interested par- ties, § 1702. Vacancy, undertaking of trustee appointed to fill, § 1702. Vacancy In trusteeship, how filled, §§ 1702, 1703. TULARE COUNTY, acts Increasing and lowering number of superior judges, p. 766. TYPEWRITERS exempt from execution, § G90. TYPEWRITING, writing includes, § 17. UNDERTAKING: See Bond; Surety. Appeal to superior court, on, § 978. Appeals, §§ 940-949. See Appeals. Arrest of defendant, on, §§ 482, 487. Arrest of defendant in justice's court, for, § 862. Attachment, in, §§ 539, 540, 554. Attachment in justice's court, on, § SG7. Attachment of vessel, on, § 818. Attachment of vessel, on discharge of, § 822. Commissioner or elisor to sell encumbered property, § 726. Costs by nonresident or foreign corporation, for, § 1036. Costs in libel and slander, to cover, p. 778, Slats. Court commissioners, power to take and approve, § 259. Elisor, of, to sell Incumbered property, § 72G. Guardian, of, receiving proceeds of partition sale, § 794. Injunction, upon, § 529. Jurisdiction of justice In action on, § 112. Limitation In action on, § 340. Municipality need not give, § 1058. Officer need not give, § 1058. Quo warranto, in, § 810. Receiver of, § 567. Receiver, on appointment of, § 5CG. UNDERTAKING— USURPATION, ETC. 10<1 Replevin, in, §§ 512, 514, 519, 520. Requisites of, in general, § 1057. Several actions on, costs and disbursements in case of, § 1023. State, county, city, town or officer need not g^ive, § 1058. Supplementary proceedings, in, § 715. Time for filing, extension of time for, § 1054. Trustee appointed to fill vacancy, undertaking of, § 1702. UNITED STATES, documents of, how proved, § 1918. Includes what, § 17. Judicial record of, how proved, § 1905. Public writings, effect of and how proved. § 1924. UNLAWFUL DETAINER, §§ 1159-1179. See Forcible En- try and Detainer. UNMARRIED FEMALE may recover for own seduction, § 374. USAGE, evidence of, § 1870. Local, governs actions concerning mining claim, § 748. USURPATION OF OFFICE AND FRANCHISE, appeal from judgment that one is usurping office does not stay, § 949. Arrest of defendant, § 804. Attorney general, proceedings by, §§ 803-810. Complaint in, § 804. Complaint, what may state, § 804. Complaint may set forth name of person entitled, § 804. Costs, when defendant liable for, § 809. Damages may be recovered by claimant, § 807, Fine for, § 809. Information, § 803. Judgment, where defendant guilty, § 809. Judgment in favor of claimant entitles him to office, § 806. Judgment may determine rights of either or both par- ties, § 805. Judgment may determine rights of Incumbent and claimant, § 805. Oath and bond of claimant on taking office, § 806. Parties, § 808. Proceeedings when several claimants, § 808. 1002 USURPATION. ETC.— VERDICT. Scire facias abolished, § 802. Undertaking in action for, § 810. VACANCY, judge's office, effect of, § 184. Justice's office, in, § 915. Justice's office, how filled, § 111. Proceedings in court not affected by, § 184. Superior judgeship, vacancy in, § 70. Supreme judgeship, vacancy in, § 42. VACATION, arbitrator's award of, § 1287. Arrest, vacation of, § 503. Arrest, vacation of, order for, § 504. Judgment, of, grounds for, § CG3. See Judgments. Order refused by another judge, § 183. Superior court may vacate its judgment, in what cases, § 663. VARIANCE. Failure of proof and not variance, when, § 471. Immaterial, how provided for, § 470. Material, how provided for, § 4C9. Material, when only deemed to be, § 469. Variance between allegation and proof, amendment, § 4C9. What not deemed to be, § 471. VENDOR AND VENDEE. Guardian decreed to make con- veyance where vendor becomes incompetent, § 1810. VENUE: See Place of Trial. VERDICT, amount of recovery, jury mast find, when, §§ C26. 627. Chance, new trial. § 657. Counterclaim set up, § 626. Courts open any day to receive, § 134. Death after, judgment on, § 669. Declared how. § 618. Directing findings upon particular questions of fact, § 625. Entry, manner of, § 628. Excepted to, deemed, § 647. Exception to form of, § 648. Failure to enter judgment on dismissal, § 581, subd. 6. Findings, special, filing and entry, § 625. VERDICT— VERIFICATION. 1083 Findings upon particular questions of fact, directed on request, § G25. Forcible entry and detainer, in, § 1174. General, defined, § G24. General, findings upon particular questions of fact di- rected upon request, § 625. General controlled by special if inconsistent, § 625. General, when may be rendered, § 025. In actions to recover realty, § 740. In proceedings against joint debtors, § 994. In proceedings to contest probate, § 1314. Interest on to be included in judgment, § 1035. Informal or incorrect, proceedings in case of, § 619. Is general or special, § 624. Judgment not supported by, notice of motion to set aside and hearing of, § CC3%. Judgment not supported by verdict, setting aside, § 663. Judgment on, when to be entered, § 664. Judgment-roll, as part of, § 670. Jury, discharge of before retrial, § 616. Justice's court, in, § 891. Polling jury, § 618. Prevented, retrial of cause, § 616. Replevin, in, § 627. Review of, on appeal, § 956. Sealed, rendered during recess or adjournment, § C17. Special, controls general if inconsistent, § 625. Special, court to direct on request, § 625. Special, defined, § 624. Special, entry of, § 628. Special, filing and entry of, § 625. Special, iBconsistent with general, controls, § 625. Special, judgment rendered in. to be entered, § 628. Special, must be filed and entered, § 625. Special, order reserving case to be entered, § 628. Special, requisites of. § 624. Special, vacation of judgment entered on, § 663. Special, when may be rendered, § 625. Three-fourths jury may render, §§ 613, 618. Vacation of on court's own motion, grounds for, § 662. Will contest. In, § 1314. Written, must be, § 618. VERIFICATION, accusation against attorney to be verified, § 291. Affidavit may be used for, § 2009. Answer, § 437. •WM VERIFICATION— WAIVER. Application for dissolution of corporation, veriftcatlon, § 1229. C!omplaint in action against vessel to be verified, § 815. Election contest, statement to be verified, § 1115. Genuineness and execution of instrument in complaint, when admitted, § 447. Genuineness and execution of written instrument in answer admitted, unless denied under oatn, § 448. Genuineness and execution of instrument are not ad- mitted, when, § 449. Injunction, complaint for must be verified, § 527. Opposition to application to become sole trader, § 1815. Petition for sale by guardian to be verified, § 1781. Petition for sale of real estate of decedent, § 1537. Petition to perpetuate testimony to be verified, § 2084. Pleadings, verification of, § 446. Return of sales to be verified, § lo/5. Statement in election contest, verification of, S 1115. VESSELS, §§ 813-827. See Shipping. VESTED RIGHTS not affected by code, fi & VIEW OF PREMISES by jury, § 610. WAGES, exemption of from execution, { $90. Lien for: See Lien. Preferred claims, §§ 1204-1207. Seamen's, §§ 825, 826. See Shipping. WAIVER. Appeal, deposit or bond on, waiver of, § 948. Demurrer not waived by filing answer at same time, § 472. Disqualification of judges, waiver of, § 170. Findings, waiver of, § 634. Jury, of, §§ 592, 631. Jury in justice's court, of, how affected, § 883. Mechanics' liens, of, § 1201. Objections to complaint, when waived, § 434. Service on waru, guardian may waive, § 1722, Summons, waiver of issuance of, § 406. Summons in justice's court, of, § 841. Sureties, waiver by failure to object, §5 513, 533. Undertaking on appeal, of, § 940. Undertaking or deposit on appeal, of, § 948. WAR— WILL. "»» WAR as cause for removal of court, § 142. Limitation of actions, how affected by war, § 354. WARRANT for salary of justice of peace, S 103. WASTE, administrator, removing for, § 1436. Civil ofRcer to inform public administrator of, § 1731. Catting or injuring trees, damages for, § 733. Damages for, §§ 732-735. Decedent, of, action for, against executor, § 1584. Enjoining executors pending application to prove lost will, § 1341. Enjoining pending foreclosure, § 745. Eviction, after, contempt, § 1210. Execution sale, injury done after and before delivery, § 746. Ehcecutor, action for, by, § 1583. Guardians, by, § 732. Joint tenants, by, § 732. Restraining, during time to redeem from execution, § 706. Rights where tenant commit, § 1161. Security against, on appeal, §§ 945, 978. Tenants, by, § 732. Tenant in common, by, § 732. What is not, § 706. WATERS as boundaries, 5 2077. Condemnation of, damages, rule for ascertaining, § 1248. Eminent domain, § 1238. Injunction respecting, vacation or modification of, § 532. Injunction to prevent diversion, refusal of, bond, § 530. Offense on lake or stream in several counties, venue of action, § 393. WELLS, implements for putting down, exemption of, § 690. WHARFAGE, vessels liable for, § 813. WILL, tenancy at, to be terminated by notice, J 1161, subd. 4. ^<*6 WILl^, I, II. III. WILLS. \. Execution of; codicils. II. Production of. III. Devises and legacies; actions involving validity of gift under. IV. Advancements. V. Nuncupative wills. VI. Alteration and revocation. VII. Probate of. VIII. Contest before probate. IX. Contests after probate. X. Probate of foreign wills. XI. Probate of lost or destroyed wills. XII. Evidence affecting. XIII. Appeals in probate proceedings. Testamentary guardian: See Guardian, I. Execution of; codicils. Codicil, will includes, § 17. To be executed according to legal formalities, § 1969. To be in writing, § 1969. II. Production of. Custodian to deliver to superior court, § 1298. Imprisonment for failure to produce, § 1302. Order to person in possession of to produce, § 1302. Penalty for nondelivery of to probate court, § 1298. Probate judge at any time may issue orders to enforce production of wills, § 1305. Production of, when in hands of third person, impris- onment to enforce, § 1302. III. Devises and legacies; actions involving validity of gift under. Action involving validity of gift or trust under, con- clusiveness of determination, § 739. Action to quiet title involving gift or trust under, will admissible. § 738. Devises, liability for debts, § 1563. Devise or legacy, petition for, on giving bond, § 1658. Devise, specific, how far exempt, § 1563. WILLS. Til. IV. V, VI, VII. Wfi7 Devises, specific, liability for debts, § 1563. Legacies, liability for debts, § 1563. Legacy, need not be paid until court orders, § 1646. Legacies, order for payment of, § 1651. Legacy, petition for on giving bond, § 1658. Legacy, specific, how far exempt, § 15G3. Legacies, specific, liability for debts, § 1563. IV. Advancements. Determination as to, § 1686. Heirs, advancements to, § 1686. V. Nuncupative wills. Appointment of executor and administrator, procedure, § 1346. Contest of, procedure, § 1346. How admitted to probate, § 1344. Manner of appointment of executors, § 1346, Notice of probate, § 1345. Petition for probate, requisites of, § 1344. Reducing to writing and filing, § 1345. Time for probate, §§ 1344, 1345. Who may petition for probate of, § 1299. VI. Alteration and revocation. Alteration of, how effected, § 1970. Revoked, how, § 1970. VII. Probate of. Certificate of, seal, § 153. Conclusive after one year, 5 1333. Depositions, taking where witnesses nonresidents, § 1308. In what county to be proved, § 1294. Judge disqualified to act, in what cases, § 1430. Judge disqualified to act, transfer of proceedings and their return. §§ 1431-1433. Judge may at any time compel attendance of witnesses, § 1305. Jurisdiction over, probate of, § 1294. Mailing copies of notices of time appointed to heirs, § 1304. Mailing of notices of petition, notices how addressed, § 1304. mt WILLS, \ai, VTii. Mailing of notices of time appointed for hearing peti- tion, time of, § 1304. Nonappointment of attorney by court does not in- validate, § 1307. Olographic will, how proved, § 1309. One witness sufficient if no contest, when, § 1308, Petition for, devisee may, § 1299. Petition for probate, who may file, § 1299. Petition for probate, contents of, § 1300. Petition for probate, effect of defects in, § 1300. Petition for probate, failure of executor to, forfeiture of right to letters, § 1301. Petition for probate must show what, § 1300. Petition for probate, notice of, how given, § 1303. Petition for probate, notice of, how served on execu- tors, § 1304. Petition for probate, notice of, proof of, §§ 1304, 1306. Petition for probate, notice of, publication or posting of, § 1303. Petition for, clerk to set for hearing, § 1303. Petition for, hearing of, time for, § 1303. Petition for, mailing notices to executors, § 1304. Petition for, personal service of notice equivalent to mailing, § 1304. Probate, petition for, personal service of notice, time for, § 1304. Photographic copy, presenting to nonresident wit- ness, § 1308. Proceedings where witness not present and deposition cannot be obtained, § 1308. Revocation, probate, when revoked, § 1330. Revocation of prior letters, § 1423. Revocation of probate, jury trial, § 1330. Revocation of probate, effect of, § 1331. Revocation, effect on powers and liabilities of execu- tors or administrators, § 1331. VIII. Contest before probate. Absence of subscribing witnesses to be accounted for § 1315. All subscribing witnesses in county to be examined § 1315. All testimony to be filed by clork. § 1318. Anyone interested may contest, § 1307. By attorney appointed by court as a bar, § 1307. WILLS. Vin, IX, X. IOCS Certificate of proof to be attached to will, § 1317. Contestant is plaintiff, § 1312. Demurrer, proceedings where sustained or overruled, § 1312. Demurrer to opposition, grounds of, § 1312. Impaneling jury, § 1313. Issues when tried by jury and when by court, § 1312. Jury trial, mode of, § 1313. Judgment to be entered on special verdict, § 1314. Judgment, will and proofs to be recorded, § 1314. Jury to return special verdict, § 1314. May be through guardian or attorney, § 1307. Of nuncupative, how conducted, § 1346. Proof of handwriting of testator and subscribing wit- nesses, § 1315. Proof of subscribing witnesses to be reduced to writing, § 1314. Testimony of other than subscribing witnesses ad- missible to prove sanity and execution, when, § 1315. Testimony reduced to writing and signed, admissibility in subsequent contests, § 1316. Trial by court, mode of, § 1315. Will and certificate of proof to be filed and recorded, § 1318. Written opposition, service of, § 1312. Written grounds of opposition to be filed, § 1312. IX. Contest after probate. Annulment of pi-obate, §§ 1330, 1331. Citation to parties interested, § 1328. Costs, who to pay, § 1332. Hearing, § 1329. Issues, how tried, § 1229. Jury trial, § 1330. •Limitations, §§ 1327, 1333. Limitations, effect of disabilities, § 1333. May be made witliin year, § 1327. Petition, § 1327. Probate annulled, when, § 1330. Proof of service of citation, § 1329. Time to contest, extension in case of disability, § 1333. Trial by court, § 1330. X. Probate of foreign wills. Admis.siou of to probate, § 1324. Hearing proois of probate of, § 1324. 1070 WILLS, X, XI, XH, XIIT-WITNKSSES. Letters to issue on, when, § 1324. May be recorded in county where testator left property, § 1322. Notice of petition for letters, § 1323. Petition for letters, § 1323. Proceedings on production of, § 1323. To be recorded, when and where, § 1322. XI. Probate of lost or destroyed wills. Certificate of contents to be filed and recorde-d, § 1340. Destroyed fraudulently during lifetime, § 1339. Existence at time of testator's death to be proved, § 1339. Granting letters, § 1340. Must be pixjved by two witnesses, § 1339. Must have existed at time of death, except when, § 1339. Proof of execution and validity to be taken, § 1338. Proof of, notice to persons interested, §§ 1338, 1340. Proof of, testimony to be reduced to writing, § 1338. ^Provisions to be proved by two witnesses, § 1339. Provisions of to be certified and recorded, § 1340. Restraining executor during proceeding to prove, § 1341. Testimony to be reduced to writing and certified, § 1340. Who may petition for, § 1299. XII. Evidence affecting. Evidence of instrument itself to be produced, § 19G9. Olographic will, how proved, § 1309. Parol evidence affecting, aidmissibility, § 185G. Secondary evidence of contents, § 19C9. XIII. Appeals in probate proceedings. Appeal lies from what orders respectin'g will, § 903. Order admitting or refusing admission to prot)ate appealable, § 9C3. Orders or pidgment relating to validity of will appeal- able, § 9C3. WITNESSES: Sec Evidence; Depositions. Absence of, postponement of trial for, § 595. Accomplice as, § 20G1. AfTirmation, form of, §§ 2C94, 2097. Aflirmation, in place of oath, § 2097. Answer questions, bound to, § 20C5. Answer, what questions need not answer. § 2065. WITNESSES. 1071 Answer questions, all pertinent questions must be answered, § 20C4. Answer questions, must, as to conviction of felony, § 20C5. Arbitration proceedings, at, § 1284. Arrest of, disobeying subpoena, § 1993. Arrest, failure to obey subpoena, issuance of warrant, § 1993. Arrest of, affidavit that he Is witness, § 20C9. Arrest of, discharge, § 2070. Arrest, who may discharge, § 2070. Arrest, wrongful, damages for, § 20GS. Arrest of, liability of officer making, § 20C9. Arrest of, liability of party causing, § 20G8. Arrest, privilege from, § 20G7. Arrest, warrant, contents of, § 1994. Arrest, warrant, how executed, § 1994. Arrest, warrant, to whom directed, § 1994. Arrest, wrongful, when a contempt of court, § 2068. Attend, bond to, § 2064. Attendance, power of court to compel, § 128. Attendance, power of judicial officer to compel, § 177. Attendance not compelled unless within thirty miles, § 1989. Attendance, lime for, § 1987. Attendance, in probate, judge may compel at any time, § 1305. Attorney as, §§ 1881, 1882. Changing place of trial for convenience of, § 397. Child under ten as, § 1880. Clergyman as, § 1881. Clerk to take testimony, when, §* 10.51. Compelled to attend, not, unless within thirty miles, § 1989. Compelled to testify when present, § 1990. Compelling to produce books and papers, § 1000. Competency of. In general, § 1879. Competency, who not competent, § 1880. Contempt by, § 1209. Contempt in justice's court, § 906. Contradicting, by party producing, § 2049. Credibility of, evidence to show, § 1870. Credibility of, may be attacked, § 1879. Credibility, greater number of do not control, § 2061. Cross-examination defined, § 2045. Cross-examination, right and extent of, § 2048. Cross-examination, when may begin, § 2045. 1071 WITNESSES. Cross-examination, not heard unless subject to, § 1846. Decedent, who may not testify of fact occurring during lifetime of, § 1880. Decedent's estate, examination of person suspected of embezzlln-g, § 1460. Defined, § 1878. Depositions, §§ 2019-2038. See Depositions. Deposition of, on postponement of trial, § 598. Detailing, contempt, § 1209. Direct evidence of one sutflcient, § 1844. Direct examination defined, § 2045. Disqualified as referee, § 641. Docket of justice of peace must contain names of, § 911. Election contest, enforcing attendance at, § 1120. Examination, court must control mode of, § 2044. Examination, oral, defined, § 2005. Examination must be in presence of persons affected, § 1846. Examination, protection of witness, § 2066. ExEi mi nation, use of affidavits to obtain, § 2009. Examination of persons suspected of embezzling de- cedent's estate, § 1400. Exclusion of, by court, § 125. Exclusion of, on examination of others, § 2043. Expert, laws of other states, § 1902. Expert, may decipher writing, § 1863. Expert, opinion of. In general, § 1870. False, In part, § 2061. Fees of, § 1987. Foreign country, §§ 2024-2028. See Depositions. Good character, evidence of, when alloTved, § 2053. Handwriting, opinion respecting, § 1870. Husband and wife as, §§ 1881, 1882. Impeachment of, by party producing, § 2049. Impeachment of, limitation on, §§ 2051, 2052. Impeachment of, manner of, §§ 2051, 2052. Inspection of writing shown to, § 2054. Interested party as, § 1880. Interpreter, contempt by, § 1884. WITNESSES. 1073 Interpreter, when to be summoned and sworn, § 18SJ. Judge as, § 1883. Juror as, §§ 602, 1883. Juror, trial of challenge, witnesses, § 603. Leading question defined, § 2046. Leading questions on cross-examination, § 2048. Leading questions on direct examination, whether al- lowed, § 204G. Lunatic as, § 1880. Memorandum, refreshing memory, § 2047. Memorandum, right to testify from, § 2047. Modes of taking testimony, § 2002. Oath, affirmation in place of, § 2097. Oath or affirmation, only heard upon, § 1846. Oath of, form, § 2094. Oath of, varying form of, §§ 2095, 2096. Officer as, § 1881. On trial of challenge of Juror, § 003. One person not affected by act of another, § 1848. One sufficient, § 1844. Opinions, in general, § 1870. Opinion of subscribing witness, § 1870. Oral examination defined, § 2005. Order of proof, how regulated, § 2042. Other than subscribing, may testify to writing, § 194L Party as, §§ 1879, 1880. Party, interested, as, § 1880. Perpetuating testimony, §§ 2083-2089. Personal knowledge, confined to, § 1845. Physician or surgeon as, § 1881. Power of court to compel attendance, § 128. Power of judicial officer to compel atttendance of, § 177. Presence of person affected necessary, § 1846. Presumed to speak truth, § 1847. Presumption that witness speaks truth, how repellefl, § 1847. Prisoner, deposition of, §§ 1995, 1997. Priest as, § 1881. Prisoner, how brought In as, § 1995. Code civil Proc— 68 WITNESSES. Prisoner, on whose motion produced, § 1996. Prisoner as, how examined, § 1997. Privilege of, § 20G5. Privileged communications, in general, § 1880. Protection of, in general, § 20CG. Public officer, as, § 1881. Recalling, discretion of court, § 2050. Re-examination of, § 2050. Referee, disqualified as, § 641, Refreshing memory, § 2047. Refreshing memory, manner of, § 2047. refusal to answer or be sworn a contempt, § 1209. Relations which disqualify, § 1881. Religious belief does not disqualify, § 1879. Subpoena, disobedience to, forfeiture for, § 1992. Subpoena, disobedience of, a contempt, § 1209. Suljpoena, disobedience of, damages for, § 1992. Subpoena, disobedience of, striking out complaint or answer, § 1991. Subpoena, disobedience to, how punished, § 1991. Subpoena, for what issued, § 19S6. Subpoena, how issued, § 198G. Subpoena, how served, § 1987. Subpoena, how served on concealed witness, § 1988. Subpoena for, defined, § 1985. Subpoena may require production of books, etc., § 1985. Subpoena person present in court compelled to testify without, § 1990. Subpoena, to be served so as to give time for atttend- ance, § 1987. Subpoena to, deposition to be used out of state, §§ 203G, 2037. Subscribing, defined, § 1935. Subscribing, mark, § 17. Subscribing, opinion of as to sanity of testator, § 1870. Subscribing, other witness may testify to writing § 1941. Subscribing, proof of will by one, § 1308. WITNESSES— WORDS AND PHRASES. IVlo Subscribing, proof of writing by, § 1940. Supplementary proceedings, at, § 718. Swearing, manner of, § 2096. Testimony of: See Evidence. Warrant to bring in, § 1993. Warrant to bring in, contents of, § 1994. Writing shown to, may be inspected, § 2054. Who competent, in general, § 1879. Who not competent as, § 1880. Who not excluded as, § 1879. WORDS AND PHRASES. Abbreviations, § 186. "Action" includes special proceedings, § 363. Affinity, § 17. Agreement, § 1856. Construed according to context and approved usage, § 16. County includes city and county, § 17. Depose, § 17. Joint authority, words giving, § 15. Masculine gender, § 17. Month, § 17. Oath, § 17. Person, § 17. Personal property, § 17. Plural number, words in, § 17. Present tense, words in, § 17. Process, § 17. Property, § 17. Real property, § 17. Seal, § 14. Section, § 17. Signature, § 17. Singular number, words in, § 17. State, § 17. Subscription, § 17. Technical words and phrases, § 16. Testify, § 17. Typewriting, writing includes, § 17. 1076 WORDS AND PliRAfJliS. United States. § 17. Will, § 17. Writ, § 17, Writing, § 17. WRITINGS: See Written Instruments. Includes what, § 17. WRITS, defined, § 17. Power of judges to grant and hear at chambers, §§ 165, 1C6. Seal, necessity of, § 153. Service in case of nonresident, § 1015. Superior judge, power of, to issue, § 76. Superior court may issue what writs, § 76. Supreme court, power of, to issue, § 51. Telegraph, service by, § 1017. WRITS OF ASSISTANCE: See Assistance. V/RITS OF POSSESSION: See Assistance. Condemnation proceedings, § 1254. In suit to determine adverse claim, § 380. WRITS OF PROHIBITION, §§ 1102-1105. See Prohibition. WRITS OF REVIEW, §§ 1067-1097. See Review, Writ of. WRITS OF SCIRE FACIAS, abolished, § 802. WRITTEN INSTRUMENTS, acknowledgment of, § 1948. Acknowledgment proves writing, § 1948. Adverse possession under written instruments, §§ 322, 323. Alteration, burden of explaining, § 1982. Ancient, presumption in regard to, § 19G3. Ancient writings, comparison, how made in case of, § 1945. Called for and inspected may be withheld, § 1931*. Certificate to, form of and how executed, § 1923. Construe, court must, § 2102. Contents of, evidence as to, § 1870. WRITTEN INSTRUME?.ITS. Wn Contents proved, how, § 1855. Copy of instrument is secondaiy evidence, § 1830. Custody of adverse party, in, notice to produce, § 1938. Decedent, entries by, admissibility, § 194G. Decedent, writings of, when admissible, § 1946. Deciphering, experts, § 1863. Destroyed, pro^'ng contents, § 1855. Entries copied from one book in another, when deemed originals, § 1947. Evidence of execution not necessary, when, § liJ42. Evidence, parol, affecting, § 1856. Executed, how, § 1933. Execution, admission of, § 1942. Execution, how proved, §§ 1940-1945. Execution of, defined, § 1933. Foreign language, experts may testify as to meaning, § 1863. General acceptation, terms to be construed by, § 1861. How proved in general, § 1940. Handwriting, how proved, §§ 1943, 1944. Inspected, writing shown to witness may be, § 2054. Inspection of, demand for, § 449. Kinds of, public and private, § 1887. Lex loci, controls interpretation, § 1857. Limitation of actions on, § 337. Lost or destroyed, proving contents, § 1855. Notice to produce: See Evidence, VII. Notice to produce, when not necessary, § 1938. Original must be produced, § 1937. Offer in, to pay equivalent to tender, § 2074. Official documents, manner of proving, § 1918. Other witnesses than subscribing may testify to, § 1941. Over thirty years, evidence of handwriting by com- parison, § 1945. Over thirty years, presumed genuine, § 1963: Parol evidence of contents, § 1870. Parol evidence to explain ambiguities, § 1856, Part in evidence all may be proved, § 1S54. 1078 WRITTEN INSTRUMENTS. Pleading, genuineness of, how admitted or conlro verted, §§ 447-449. Pleading, in justice's court, §§ 886, 887. Possession of writing by adverse party. § 1855. Possession of by adverse party, notice to produce, § 1938. Possession of officer, writing in, § 1855. Presumption tliat it is -truly dated, § 19G3. Printed partly, writing controls, § 18C2. Private, are what, § 1889. Private, certificate of acknowledgment prima facie evi- dence of execution, § 1948. Private, public record of, how proved, §§ 1894, 1919. Private, sealed and unsealed, § 1929. Private, deemed whole agreement, § 1856. Proof of, § 1941. Proved by witness, must be read before his testimony closed, § 2054. Public, books, etc., entries in, § 1920. Public, certificate, what it must state, § 1923. Public, certified copies of must be supplied, § 1893. Public, citizen's right to inspect and take copy, § 1892. Public, custodian of bound to give certified copies, § 1893. Public, defined, § 1888. Public, kinds of, § 1S94. Public, officer to give copy of, § 1893. Public and private, § 1887. Public, are what, § 1888. Public, classes of judicial records, § 1894. Public, classes of, laws,- § 1894. Public, classes of, ofFicial documents, § 1894. Public, classes of, public records of private writings, § 1894. Public, inspection of by citizens, § 1892. Public, laws, statutes, etc., §§ 1895-1903. Public, official documents, proof of, § 1918. Public, of territories, effect of and how proved, § 1924. Public, of United States, elTect of and how proved, § 1924. WRITTEN INSTRUMENTS— YUBA COUNTY. 10T3 Public, of United States or territory, how proved, § 1924. Public, state or county, certified copy admissible, § 1901. Seal makes no difference, § 1932. Sealed may be abolished by unsealed, § 1932. Secondary, copy of instrument is, § 1830. Shown to witness, may be Inspected by opponent, § 2054. Surrounding circumstances admissible, §§ 1856, 1860. Written words control printed, § 1862. WRONGFUL DEATH, damages for, § 377. Guardian may sue for death of ward, § 376. Heirs may sue for, § 377. Limitation of action for, § 339. Parent may sue for death of minor, § 376. Representatives, when may sue for, § 377. Who may be sued for, §§ 37G, 377. WRONGS. Definition of injury to person, § 29. Definition of injury to property, § 28. Joinder of actions for, § 427. Kinds of, § 27. YUBA COUNTY. One superior judge for Yuba and Siittcr counties, § G5. Separate judges for Sutter and Yuba counties, p. 7G6, Stats. UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 836 794 8 A'^^ll